• May 1 2019
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  • Category: CAFC Updates

ThermoLife sued Hi-Tech Pharmaceuticals and Vital Pharmaceuticals on four patents which claim methods and compositions involving the amino acids arginine and lysine, to be ingested to enhance vascular function and physical performance.  After the district court held all asserted claims invalid,  HiTech and Vital moved for attorney’s fees under 35 U.S.C. § 285, which authorizes an award of fees to a prevailing party (like Hi-Tech and Vital) in “exceptional” cases. The district court found the cases exceptional, but not based on an assessment of the validity position taken by plaintiffs or how they litigated validity, but rather because plaintiffs were unjustified in alleging infringement in the first place, having failed to do an adequate pre-filing investigation, resulting in objectively unreasonable infringement contentions. The CAFC did not see an abuse of discretion in the district court’s resting its exceptional-case determination on an examination of an issue—infringement, and specifically the basis for alleging infringement—that was neither fully adjudicated nor even fully litigated before the judgment on the merits. The CAFC also accepts the district court’s finding of a “pattern of action” by plaintiffs of bringing “suit against many defendants without carefully reviewing their claims” and that plaintiffs’ irresponsible filing of infringement allegations extended widely beyond these two cases. Accordingly, the CAFC affirms.

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