In theory, a trial is governed by a set of rules. In cases of alleged patent infringement, the applicable rules are the Federal Rules Of Civil Procedures (F.R.C.P.). Enforcement of the rules, which are intended to ensure a fair and civil (judicialspeak for “reasonably polite”) trial, is invested in the trial judge. Some judges are rather lax in enforcement; others are not. One of the latter is Chief District Judge Joseph F. Bataillon of the U.S. District Court For The District Of Nebraska, who recently ordered a PREVAILING defendant to pay more than $400,000 in attorney’s fees to the plaintiff. (Kellogg v. Nike, Inc. et al.)

Kellogg had sued Nike, claiming infringement of his design patent on a vented “baseball-style” cap. Nike had asserted that the patent was invalid, during pre-trial proceedings, but dropped this claim on the eve of trial. Nevertheless, at trial Nike’s counsel repeatedly made statements suggesting that the patent was invalid, despite being admonished by the judge, who instructed the jury that the patent was valid.

The judge held that “Nike’s conduct in asserting and pursuing the claim of invalidity was frivolous and was intended to delay the proceedings, obfuscate the issues and increase Kellogg’s costs of litigation.” He further went on to hold that, “Nike’s adamant denial that there was any misconduct in this case displays the same arrogance that has colored this case almost from its inception.”

Thus, Kellogg, whose patent was found, by the jury, to be “not infringed,” recovered about a third of its legal fees and costs.

THE LESSON TO BE LEARNED: Play nice and, if you’re caught breaking the rules, contrition may be a better tactic than “adamant denial.”