Deterrence Of Future Abusive Litigation May Support Fee-Shifting Under 35 U.S.C. § 285

*Correction: This post was first published on January 2, 2020. The title has been changed to more accurately reflect the contents of the Federal Circuit opinion.

In Blackbird Tech LLC v. Health in Motion LLC, No. 2018-2393 (Fed. Cir. Dec. 16, 2019), the Federal Circuit affirmed a district court's award of attorneys' fees under 35 U.S.C. § 285 where the patentee's litigation conduct was unreasonable, its infringement contentions were meritless, and where fee-shifting served the court's interest in deterring future abusive litigation.

The Federal Circuit found Blackbird Tech's litigation conduct unreasonable, citing its "nuisance value settlement offers," unreasonable delays in document production, and filing an unanticipated notice of dismissal on the eve of trial.  Despite its voluntarily dismissal, Blackbird asserted that its litigation position was nonetheless "eminently reasonable, and likely correct."  The Court disagreed, holding that the accused product