Fees Awarded Against Client (But Not Lawyer) in Patent Case

Only a little lower in the stack, but without any apparent connection to UP President Beth Whited’s visit to Marshall last week, was this order by Chief Judge Godbey of the NDTX finding the case “exceptional” and awarding fees under 35 USC § 285, and assessing fees against the plaintiff, but declining to award sanctions under 28 USC § 1927 or the court’s inherent powers, or hold the plaintiff’s counsel jointly and severally liable for the fees. But I did have a nice visit with Judge Godbey’s wife at my seminar Friday in Austin, so there’s that.

Attorneys Fees for Prevailing Defendant in Copyright Case

The prevailing defendant in this copyright case sought an award of fees under 17 U.S.C. § 505.  Judge Gilstrap’s opinion sorted through the claims and the parties’ alleged conduct in the case before finally determining the appropriateness of an award of fees, thus giving parties some guidance on when an award of fees in a copyright case is appropriate.

Complaints About Attorneys Fees Award Rejected


The plaintiff asserted several objections to Magistrate Judge Baxter’s award of fees, none of which Judge Schroeder agreed with. Specifically,

  • yes it can be a report and recommendation,
  • yes, you waived your objections to the court’s claim construction rulings,
  • yes, you should have known your infringement theories were unsupported when the summary judgment report came out in the companion case, and
  • yes, the case is “exceptional” – you continued to pursue theories that you knew or should have known were baseless, filed meritless motions, and argued positions that had already been rejected.