Federal Circuit Affirms Attorney Fee Award Against InvestPic, Issued After NPE Ignored Signs of Alice Invalidity

October 10, 2019

The Federal Circuit has summarily upheld an award of attorney fees for SAP against InvestPic LLC that a district court had imposed after the NPE ignored warning signs that its patent was invalid. In the affirmed decision—issued by District Judge Ed Kinkeade in September 2017, months after he invalidated the patent-in-suit under Alice—the court held that the NPE’s case against SAP was exceptional under Octane, finding in part that InvestPic should have known its patent was likely directed to unpatentable subject matter, both due to explicit cautionary statements from the USPTO on that specific patent and because of applicable caselaw on Section 101. The Federal Circuit had also previously upheld the lower court’s Alice order, confirming in May 2018 that the patent is ineligibly directed to an abstract idea, in the form of a series of mathematical calculations. Later that summer, the appeals court declined to revisit that conclusion in light of a subsequently issued reexamination certificate.

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