Federal Circuit Chides Blackbird for “Nuisance” Litigation in Fee Award Affirmance, Echoing Prior Octane Rulings

January 24, 2020

The Federal Circuit has upheld an attorney fee award against patent monetization firm Blackbird Tech LLC (d/b/a Blackbird Technologies), affirming a Central District of California decision that the NPE’s case against two providers of exercise equipment was exceptional under the Supreme Court’s holding in Octane. In particular, the Federal Circuit agreed with the district court that Blackbird’s conduct justified a fee award under both independent prongs of Octane, by pursuing “meritless” and “frivolous” claims against the defendants and for litigating in an unreasonable manner. Now, the defendants have asked the Federal Circuit for fees incurred at the appellate stage, citing its ruling that Blackbird’s conduct had “severely affected every stage of the litigation”. The rulings against Blackbird echo a prior series of Octane decisions against IP Edge LLC, another monetization firm known for its similar file-and-settle strategy.

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