Inventor "Raised From The Dead" Not Exceptional

Despite acknowledging "a unique case involving an unusual set of facts—a not-so-dead inventor, forged documents, no evidence of culpability, and a late discovery request," the U.S. Court of Appeals for the Federal Circuit affirmed the district court’s finding that the case is not exceptional under 35 U.S.C. § 285 and does not support a motion for attorneys’ fees. Digeo, Inc. v. Audible, Inc., Case No. 07-1133 (Fed. Cir., Nov. 1, 2007) (Michel, C.J.).

Digeo purchased U.S. Patent No. 5,734,823 (the ’823 patent) "as is" in 2002 at a bankruptcy estate sale. Prior to the sale, Digeo obtained the patent file history, in which a power of attorney (POA) was filed in 1996, allegedly signed by one of four inventors as the executor of the estate of his deceased brother, a second inventor. Also filed on the same day was a separate POA by the remaining three inventors. In assignments executed in 1996, but not recorded until 2002, the three inventors executed an assignment, and the one inventor