Do Your Homework Before Suing For Patent Infringement!

The federal patent laws provide for an award of attorneys' fees to the prevailing party in exceptional patent infringement cases.  35 U.S.C. §285.  An exceptional case is determined based on the totality of the circumstances.  A case can be exceptional due to a substantive legal position taken by a party or a party's unreasonable litigation tactics.  Courts can and will award attorneys' fees to a prevailing defendant if the plaintiff was not justified in filing a patent infringement suit in the first place by failing to conduct a proper investigation of infringement before filing suit.

ThermoLife International LLC v. GNC Corp., 922 F.3d 1347 (Fed.Cir. 2019) is a recent example of this.  The District Court for the Southern District of California awarded the defendants their attorneys' fees because the plaintiffs did not adequately investigate the issue of defendants' infringement before suing them.