Opinion
No. 12983.
Argued February 2, 1960.
Decided February 15, 1960.
Davidson C. Miller, Washington, D.C. (Gordon R. Harris, Pittsburgh, Pa., Stevens, Davis, Miller Mosher, Washington, D.C., on the brief), for appellant.
John Gibson Semmes, Washington, D.C. (David H. Semmes, Benj. W. Dulany, Washington, D.C., Julian Miller, Brown, Critchlow, Flick Peckham, Pittsburgh, Pa., Harry H. Semmes, Washington, D.C., on the brief), for appellee.
Before GOODRICH, HASTIE and FORMAN, Circuit Judges.
This is an appeal from a judgment of the District Court for the Western District of Pennsylvania which denied award of attorney fees in a patent case. The suit was the usual type for a patent infringement. The case went through the process of discovery and there was a pre-trial conference and a pre-trial order. Facts appeared on which the defendant based a claim of misuse of patents and other matters. Following the pre-trial conference, the plaintiff moved to dismiss and the court granted the motion to dismiss but with prejudice. The court denied the defendant counsel fees under 35 U.S.C.A. § 285. Such an award is necessarily one based upon the court's discretion and its consideration of what constitutes an exceptional case under the statute cited. We do not think that the exercise of the court's discretion against such an award in this instance is one which we can say constituted an abuse of that discretion. The judgment will be affirmed.