Opinion
01 Civ. 6541 (HB)
June 18, 2002
OPINION ORDER
Plaintiff Dri Mark Products Inc. ("Dri Mark") brought an action against its competitors, defendants National Ink, Inc. ("National Ink") and Dixon Ticonderoga Co. ("Dixon") for patent infringement with respect to metallic ink markers. Following the defendants' motions for claim construction and summary judgment, and a Markman hearing on April 2, 2002, I granted summary judgment in favor of the defendants, dismissing the case. The defendants' move to recover attorney fees under 35 U.S.C. § 285. For the following reasons, the defendants' motion is DENIED.
I. DISCUSSION
With respect to actions for patent infringement, "[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party." 35 U.S.C. § 285.
The defendants contend that "Dri Mark initiated and continued this litigation fully aware, and in complete disregard, of the fact that the accused product did not contain a necessary claim limitation." (National Ink Mem. at 2). Further, the defendants argue that "Dri Mark's proposed claim construction had no support in the law . . ." (National Ink Mem. at 8), and Dri Mark "had no basis for its infringement allegations." (Dixon Mem. at 1). I disagree, and certainly the defendants have failed to provide clear and convincing evidence to show otherwise. See B. Braun Medical, Inc. v. Abbott Laboratories, 124 F.3d 1419, 1429 (Fed. Cir. 1997) (finding that a prevailing party seeking an award of attorney fees has the burden of establishing the exceptional character of the case by clear and convincing evidence).
Contrary to the defendants' suggestion, the outcome of this case was by no means a foregone conclusion. Further, the Federal Circuit has noted that a finding that a case is exceptional within the meaning of§ 285 is based on a variety of factors, I e., "willful or intentional infringement, inequitable conduct before the Patent and Trademark Office, vexatious or unjustified litigation, or other misfeasant behavior." Multiform Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1481-82 (Fed. Cir. 1998). None of these factors were sufficiently shown to exist here.
In overseeing the litigation of this matter from the pretrial conference to the granting of summary judgment nine months later, I found this case to be neither frivolous nor exceptional. I therefore decline to award attorney fees.
II. CONCLUSION
For the foregoing reasons, the defendants' motion for attorney fees is DENIED.