N.D. Georgia Denies Motion for Attorney's Fees and Costs in Patent Case

Per Merial Limited v. Intervet, Inc., 437 F. Supp. 2d 1332 (N.D. Ga. July 10, 2006):

The defendant, Intervet, Inc., now seeks approximately $300,000.00 in attorney's fees and costs [Doc. No. 51] pursuant to 35 U.S.C. § 285, 28 U.S.C. § 1927, and the inherent power of the court. Generally, patent infringement suits are governed by the same rules that govern other federal litigation; each party bears its own expenses. Congress, however, has carved out two statutory exceptions to the general rule for patent infringement cases: 35 U.S.C. § 285 and 28 U.S.C. § 1927.

"A determination of whether a case is eligible for attorney's fees under § 285 is a two-step process." MEMC Electronic Materials, Inc. v. Mitsubishi Materials Silicon Corp., 420 F.3d 1369, 1382 (Fed.Cir.2005). First, the court must determine whether the case is exceptional. Id. Second, the court must determine whether attorney's fees are appropriate. Id. Exceptional cases include those involving misconduct during litigation, vexatious, unjustified, or bad faith litigation, or the failure to adequately investigate before filing suit. See Epcon Gas Systems, Inc. v. Bauer Compressors, Inc., 279 F.3d 1022, 1034 (Fed.Cir.2002). In addition to awarding attorney's fees pursuant to § 285, the court may impose sanctions upon any attorney who unreasonably and vexatiously multiplies the proceedings. 28 U.S.C. § 1927. Section 1927, however, is "not a 'catch all' provision . . . Peterson v. BMI Refractories, 124 F.3d 1386, 1395 (11th Cir.1997). Instead, "the statute was designed to sanction attorneys who 'willfully abuse the judicial process by conduct tantamount to bad faith.' " Schwartz v. Millon Air, Inc., 341 F.3d 1220, 1225 (11th Cir.2003) [citation omitted].

[T]he applicable standards are not satisfied in this case for an award of attorney's fees under either 35 U.S.C. § 285 or 28 U.S.C. § 1927. Intervet has not established by clear and convincing evidence that this is an exceptional case under § 285. Merial and its counsel also did not unreasonably and vexatiously multiply the proceedings or otherwise act in bad faith.