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Blackbird Tech LLC v. Health In Motion LLC

Fed Cir Supports District Court Discretion in Exceptional Case Determination

Blackbird Tech LLC v. Health In Motion LLC, __ F.3d __, 2019 WL 6834255 (Fed. Cir. Dec. 16, 2019) (Prost, WALLACH, Hughes) (C.D. Cal.: Real) (2 of 5 stars)

Fed Cir affirms award of $360,000 in attorney fees and expenses. The district court did not abuse its discretion in finding Blackbird’s case exceptional under 35 U.S.C. § 285, and the opinion analyzes that finding per Octane Fitness, 572 U.S. 545 (2014). The opinion discusses how the lack of substance in Blackbird’s infringement and claim construction positions warranted a determination that this case “stands out” from others, and rejects Blackbird’s argument that it was not on notice of its case’s problems. “The District Court was not obliged to advise Blackbird of the weaknesses in its litigation position, and further, while a lack of early notice can support a denial of attorney fees, we have not held that such notice is rigidly required.” Op. at 9 (quoting in part Thermolife, 922 F.3d 1358 (Fed. Cir. 2019). The opinion also discusses how Blackbird’s manner of litigation “stands out” from other cases, noting Blackbird’s nuisance settlement offers, delays in producing discovery, and its dismissal of the case with a covenant not to sue on the day pretrial submissions were due. There was no abuse of discretion in the district court considering the need to deter future abusive litigation in its order. There was also no abuse of discretion in the amount of the award, and the opinion notes that the 650 hours of attorney time was not excessive.

KEYWORDS: ATTORNEY FEES; EXCEPTIONAL CASE