Pragmatus Telecom LLC v. Newegg Inc.C.A. No. 12-1533 - RGA, February 18, 2016

Andrews, J. Defendant’s motion for costs and fees is granted as to costs and denied as to fees.

Plaintiff filed an unopposed motion to dismiss after defendant’s suppliers had settled with plaintiff. Defendant moved for costs and fees which were denied on the basis that the defendant was not a prevailing party. The Federal Circuit reversed. On remand, the court determines that the case is not exceptional. Plaintiff brought suit against 70 infringement actions across the country against  customers using live chat technology, the court did not find vexatious litigation strategy and declined to find the case exceptional simply because plaintiff did something (suing customers rather than suppliers) that the Patent Act contemplates.  Defendant’s invalidity arguments were not supported by expert testimony or claim construction to rebut the presumption that the patents are valid.  The court refers the proper calculation of costs to the Clerk of the Court.