On May 30, 2014, a New York court granted the defendant's motion for attorneys’ fees under 35 U.S.C. § 285 because the suit was a "prototypical exceptional case," and the award of attorneys' fees and costs would deter similarly unreasonable patent suits. Citing the Supreme Court’s recent decision in Octane Fitness, LLC v. ICON Health & Fitness, Inc., U.S. District Judge Denise Cote found that the plaintiff’s motivation for filing the complaint was to extract a nuisance settlement from the defendant based on the theory that the defendant would rather pay a license fee than bear the costs of threatened expensive litigation. The defendant maintained that the allegation was frivolous and refused to pay the $85,000 licensing fee (later reduced to a “one-day only offer” of $55,000) that the plaintiff demanded. In addition, the complaint alleged the patent-in-suit was infringed based on the defendant’s purported use of bilateral preference matching, but it was undisputed the accused feature on the defendant’s website did not employ such matching. Accordingly, “no reasonable litigant could have expected success on the merits in the suit.” Judge Cote therefore found that “the boilerplate nature of Lumen's complaint, the absence of any reasonable pre-suit investigation, and the number of substantially similar lawsuits filed within a short time frame suggests that Lumen's instigation of baseless litigation is not isolated to this instance, but is instead part of a predatory strategy aimed at reaping financial advantage from the inability or unwillingness of defendants to engage in litigation against even frivolous patent lawsuits." The judge will issue a schedule for additional briefing from the parties to determine the amount of attorneys' fees and expenses.

Lumen View Technology LLC v. Findthebest.com, Inc., 1-13-cv-03599 (S.D.N.Y. May 30, 2014) (Cote, J.)