It’s bad enough when you sue for patent infringement and lose. It’s worse when you lose and are ordered to pay the defendant’s attorney’s fees and costs. (Martec, LLC v. Johnson & Johnson and Cordis Corporation)
Martec is the owner of two patents directed to surgical devices having a therapeutic agent bonded thereto. The two patents share a common specification. During prosecution of the patents in the Patent Office, the patentee argued that his inventions did not include stents and that they had a therapeutic agent bonded thereto by the application of heat. Martec then sued Cordis, alleging that certain Cordis stents infringed the patents.
Cordis moved for summary judgment of noninfringement, pointing out that the patentee had disclaimed that the patents-in-suit covered stents and that the drug coating on the accused stents was applied at room temperature, i.e. without application of heat. The court granted the motion. Ordinarily, that would have been the end of the matter – but not here. The plaintiff had clearly pissed off the judge. Although the defendant had not filed a motion for attorney’s fees – you have to wonder why – the court went on to hold that “where the patentee is manifestly unreasonable in assessing infringement, while continuing to assert infringement in court, an inference is proper of bad faith…” and awarded attorney’s fees and costs to the defendant. The court then went on to note that, during the proceedings, the plaintiff had “mischaracterized the claim construction adopted by the Court and had sought to rely upon inadmissible expert testimony” – which the Court had excluded. For this reason, the Court felt “entitled to use its inherent power” to add the fees paid by the defendants to their expert witnesses, $810K, to the award of attorney’s fees and court costs, $3,874K.
THE LESSONS TO BE LEARNED: As we have previously advised, don’t sue without a clear case of infringement and DON’T PISS OFF THE JUDGE.