“As a final point, the Court does not observe, based only on the evidence presently before it, anything exceptional about the parties’ conduct in this case.”

In any context but patent litigation, this would be a bad thing. But this quote from an opinion granting in part a voluntary dismissal in a patent case but making clear that the Section 285 issues – NOT THAT THERE ARE ANY – are reserved for later reminded me of one of the epic scenes in a Monty Python film where John Cleese unsuccessfully tries to bring order to a stoning.

But I guess I could talk about the order as well.

So here’s the deal.

Plaintiff voluntarily a dismisses a case on the proverbial eve of trial by entering into a covenant not to sue, and oh by the way, all parties to bear their own costs and attorneys fees. Not so fast, the covenant-beneficiary defendant says, asking that its counterclaims be dismissed without prejudice, that it be declared the prevailing party, and its right to seek fees be preserved.

Judge Gilstrap agreed with the defendant that its counterclaims would be dismissed without prejudice, but noted that whether it was the prevailing party would be determined via a motion for an award of costs.

“As a final point,” he wrote, “the Court does not observe, based only on the evidence presently before it, anything exceptional about the parties’ conduct in this case. However, neither party is prejudiced regarding any future request for an award of fees pursuant to 35 U.S.C. § 285, over
which the Court retains jurisdiction.” (Highly speculative emphasis is mine).

In other words no one is to stone anyone until I blow this whistle.

© 2019 Michael C. Smith, All Rights Reserved.

This blog does not constitute legal advice. If you’d like to discuss a related legal matter, please contact Michael C. Smith via email or call 903-938-8900.