Lack of Standing Argument by Plaintiff Does Not Preclude Attorney Fee Award

Upholding an award of attorney fees, a panel of the U.S. Court of Appeals for the Federal Circuit held that an appellant, a patent owner, could not avoid such an award by asserting that its exclusive licensee (Evident) lacked standing to bring an infringement claim in the first instance. Evident Corp. v. Church & Dwight Co., Inc., Case Nos. 03-1514, 04-1137 and 04-1213 (Fed. Cir., Feb. 22, 2005) (Lourie, J.).

Inventors Rudy, Denholtz and Denholtz, filed a continuation-in-part (CIP) application covering formulas for toothpaste. During the course of prosecution of the CIP application, the inventors and three others formed Peroxydent Group, a New Jersey partnership, to which the inventors assigned all rights to any patent issuing from the application. Subsequently, three members of Peroxydent formed Evident Corporation. In turn, Peroxydent licensed rights under any patent issuing from the CIP application exclusively to Evident, reserving for itself only a right of first refusal to file