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An Exceptional Example Of How Not To Run A Patent Defense

Last week, Above the Law highlighted a case handled by Arent Fox and Complex Litigation Partner James Hulme and Associates Taniel Anderson and Jake Christensen that involved client Sabinsa Corporation and the issue of attorneys’ fees motions in patent cases. In that case, Sabinsa was awarded substantial damages and attorneys’ fees.

ATL reported that, “no longer a rare occurrence, fees motions are more frequent and granted more often. In fact, the number of fees motions filed since the Supreme Court loosened the standards for recovering fees from losing parties reportedly doubled in just two years post-Octane — and has showed no signs of slowing more recently.”

The article noted that a recently unsealed fees decision out of New Jersey is illustrative of the consequences a games-playing defendant can face as the loser of a patent case. The March 2017, decision in Sabinsa Corporation v. Olive Lifesciences awarded nearly a million dollars in attorneys’ fees in a competitor patent case with an interesting fact pattern.

“Ultimately, a decision like the one in Sabinsa should serve as a cautionary tale for patent litigation defendants who are clearly unprepared to mount a full defense of the case brought against them,” wrote ATL. “Hoping for an easy, early win, while cutting bait after it becomes clear that such a win is not forthcoming, is a recipe for having to pay your opponent’s fees according to the court in Sabinsa.”


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