• Dec 14 2018
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  • Category: CAFC Updates

Wright Medical appeals the District Court’s denial of its motion for attorney fees under 35 U.S.C. § 285.  In 2015, Spineology sued Wright, alleging that Wright’s  X-REAM® product infringes certain claims U.S. Patent No. 6,383,188, reissued as No. RE42,757, which describes an “expandable reamer” for use in orthopedic surgery. The district court, recognizing the alleged infringement depended on how “body” was construed, construed “body” consistent with Wright’s non-infringement position, and granted Wright’s motion for summary judgment on infringement. Wright then moved for attorney fees, and the motion was denied. The District Court found that, while Spineology’s proposed construction was ultimately rejected, “[t]he attempt was not so meritless as to render the case exceptional” and that “the arguments made by Spineology to support its damages theory . . . are not so meritless as to render the case exceptional.” The CAFC agrees with the District Court on the construction position not being meritless and refuses Wright’s request to have the CAFC basically decide the damages issues mooted by summary judgment in order to determine whether Wright ought to obtain attorney fees for the entire litigation. Finding that the District Court did not abuse its discretion in denying Wright’s motion for attorney fees under § 285, and reminding litigants that fee awards are not to be used as a penalty for failure to win a patent infringement suit, the CAFC affirms.

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