The Problem Was That The Claims Were Dismissed Before Fully Adjudicated, With The Fee Claimant Failing to Show In Detail Why They Were Wholly Lacking In Merit.
In Munchkin, Inc. v. Luv N’ Care, Ltd., No. 2019-1454 (Fed. Cir. June 9, 2020) (precedential), spillproof cup rivals engaged in federal intellectual property litigation, with Plaintiff suing Defendant for patent, trademark, and trade dress infringement. Eventually, Plaintiff voluntarily dismissed the non-patent claims and later dismissed the patent claims after an adverse IPR unpatentability finding. Defendant then moved for attorney’s fee recovery on the ground that the case was “exceptional” so as to justify fees under the patent and trademark statutes, 35 U.S.C. § 285 and 15 U.S.C. § 1117(a). [In this area, the “exceptional” determination is made by utilizing the factors set forth in SCOTUS’ seminal Octane Fitness opinion, see 572 U.S. 545 (2014)]. The Federal Circuit Court of Appeals reversed the fee award. The flaw in the award was that the intellectual property issues had not been fully adjudicated, with the Defendant not making a detailed enough showing that the case was wholly lacking in merit. This reversal in fortune meant that a $1.1 million fee award went POOF!
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