Motion to Dismiss for Improper Venue Granted; Cordis & Cray analyzed

With In Re Cray clarifying to some extent when venue is proper based on the alleged existence of a regular and established place of business, cases are starting to get thumbs up or thumbs down on pending venue motions at an accelerating pace, providing additional analysis on where in the Cordis/Cray continuum they fit.

Like this one.

Court Denies Motion for Fees

One of my favorite things is when the same court – meaning the same judge and in approximately the same time frame so you don’t have pesky things like intervening changes in the law messing up the comparison – issues orders going opposite ways on the same question based on the different facts in the two cases. The problem is somewhat similar to naval gunnery, where a ship begins an engagement by attempting to “find the range” to a target, with salvoes of shells falling short (and throwing up splashes that are then plotted) and then long as the gunners attempt to determine what trajectory finds the target.  Once they “find the range” they attempt to direct as many shells as possible to that target. Where court opinions are somewhat different is that practitioners are acutely interested in where the shots change from short to long so they know at what point a court’s denials of a motion become grants – meaning which facts cause a court that would otherwise deny a motion to consider granting it. Yesterday I posted on a very recent opinion granting attorneys fees in a patent case under Section 285 against a “bulk filer” plaintiff.  Two days later, the same judge denied a motion for fees against a different “bulk filer” patent plaintiff, giving us a unique insight into what facts can make cases different.  So what were the facts in this new case?

Court Grants 285 Motion for Fees Against “Thanksgiving Specials” Patent Plaintiff

George Bernard Shaw once said “I often quote myself. It adds spice to my conversation.” In that vein, in a May 5, 2014 article on the then-new Octane Fitness case making attorneys fees easier to recover, Texas Lawyer reporter John Council wrote:

The decisions also mean that patent practitioners should be wary of where they file their patent infringement claims, especially if their clients are nonpracticing entities who attempt to enforce patent rights against accused infringers in hopes of recovering licensing fees, said Michael C. Smith, a partner in Siebman, Burg, Phillips & Smith in Marshall.

“It’s going to become a ‘loser pays’ for nonpracticing entities in courts that have not seen a lot of these cases,” Smith said. “In courts that have seen a lot of these cases, they will expect plaintiffs to drop cases if they become insurmountable. And if they pursue it after that, they will get hung.’’

(Emphasis mine because, of course). This is the case that I was talking about.

An issue patent practitioners are always interested in is when a party’s conduct in a patent infringement case meets the test for “exceptional” case status so as to justify an award of attorney’s fees under 35 U.S.C. § 285.  This case presents the situation as applied to a “bulk filer” plaintiff who filed 20 cases the same day in November 2015.  If that date sounds familiar, it should – that was the “Thanksgiving Special” period where hundreds of patent cases were filed in the incorrect belief that the fast-approaching December 1, 2015 amendments to pleading requirements would not apply to them.