After the jury returned a defense verdict of non-infringement and invalidity, defendant Cerner Corporation moved for attorneys’ fees under 35 U.S.C. § 285. Cerner argued that the case was exceptional because plaintiff litigated the case in an unreasonable manner and pursued substantively meritless claims. Specifically, Cerner argued that, (1) plaintiff’s indirect infringement theories and validity arguments were completely lacking in substantive strength; and (2) plaintiff litigated this case in an unreasonable manner by (i) dropping all asserted claims of one patent and several of another on the eve of trial; (ii) dropping its willfulness allegations after the Court relied on those allegations to admit a key piece of evidence that painted Cerner in a bad light; and (iii) seeking to change its infringement theory prior to and during trial.

The Court determined that the bulk of plaintiff’s claims were not devoid of evidentiary support and that there is “nothing exceptional about a patentee defending its presumptively valid patent.” Id. at 5. In addition, the Court noted that “[it] has repeatedly voiced its displeasure with some of [plaintiff's] trial tactics. . . . But the Court concludes that they do not rise to the level of exceptional conduct for which an award of fees is warranted. Significantly, [defendant] makes no allegations of unprofessional conduct from [plaintiff's] counsel for the more than two years this case was litigated prior to trial. . . . The concerns [defendant] raises involve decisions made during the heat of trial."  Id. at 8 (citations omitted).

RLIS, Inc. v. Cerner Corp., Civil Action No. 3:12-cv-209, in the Southern District of Texas.