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District Court Denies Motion for Exceptional Case and for Attorney’s Fees after Trial

After the defendants Ingenico S.A.’s, Ingenico Corp.’s, and Ingenico Inc.’s (the “Ingenico Defendants”) prevailed at trial, the defendants filed a Motion to Declare this an Exceptional Case and For Attorney’s Fees Pursuant to 35 U.S.C. ยง 285.

The district court began its analysis by noting that “[d]istrict courts may determine whether a case is ‘exceptional’ in the case-by-case exercise of their discretion, considering the totality of the circumstances.” Octane Fitness, LLC v. ICON Health and Fitness, Inc., 134 S. Ct. 1749, 1756 (2014). Section 285 imposes ‘one and only one constraint’ on a district court’s discretion to award attorney fees in patent litigation: the case must be ‘exceptional.’ Octane Fitness, 134 S. Ct. at 1755-56. The Ingenico Defendants must show exceptionality by a preponderance of the evidence. Iris Connex, LLC v. Dell, Inc., 2017 WL 365634, at *10 (E.D. Tex. Jan. 25, 2017).”

The district court then concluded that the Ingenico Defendants have not met that standard for two reasons. “First, simply because the Ingenico Defendants won at trial does not make this case exceptional. Actually, while the fact that this case went to trial and to jury verdict, notwithstanding Ingenico’s Motion for Summary Judgment of Non-Infringement and Rule 50 Motion for Non-Infringement does not preclude an exceptional case determination, it strongly suggests that CardSoft’s case was non-frivolous. This weighs against exceptionality.”

“Second, the Ingenico Defnedants also do not present any persuasive evidence of litigation misconduct or that this litigation was brought in bad faith. Indeed, given the posture of this case, the latter is exceedingly unlikely. While the Ingenico Defendants do make claims bordering on an allegation objective baselessness or bad faith–such as that ‘CardSoft blatantly failed to follow Federal Circuit precedent and blindly ignored the facts of this case’ (Dkt. No. 493 at 18)–the Court has reviewed all of these alleged failings and finds them each individually and in the context of this case to be unexceptional.”

The district court therefore found that the Ingenico Defendants did not provide sufficient evidence of exceptionality and accordingly denied the motion.

Cardsoft, Inc. v. Verifone Holdings, Inc.,
Case No. 2:16-CV-0098-RSP (E.D. Tex. March 2017)

The authors of are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. For more information about this case, contact Stan Gibson at 310.201.3548 or

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