Patent litigation is typically quite an expensive proposition, particularly since parties must generally pay their own attorney fees. That said, district courts may award fees to the prevailing party “in exceptional cases” under 35 USC § 285, which under the Supreme Court’s Octane standard can include those where the plaintiff’s case was substantively weak or was litigated in an “unreasonable manner”. However, the Federal Circuit has now held that district courts may not award fees for those incurred in related validity challenges before the Patent Trial and Appeal Board (PTAB). In its precedential decision in Dragon Intellectual Property v. Dish Network, a majority of the appellate court ruled that fees are not available under § 285 for IPRs, even those filed over patents asserted in parallel district court litigation, because such proceedings are “voluntary”. The decision prompted a pointed dissent from Southern District of California Judge Cathy Ann Bencivengo, sitting here by designation.

Sycamore IP Holdings LLC has added a third wave to its sole litigation campaign, filing complaints against AT&T (2:16-cv-00588), CenturyLink (2:16-cv-00589), Level 3 Communications (2:16-cv-00590), and Verizon (2:16-cv-00591). One patent (6,952,405) from a portfolio of 40 originally issuing to failed optical networking company Sycamore Networks, Inc. is at issue in the campaign. The ‘405 patent generally relates to encoding data for Ethernet over optical transport, with the defendants’ optical networking products targeted by the NPE.

Ten suits were filed in a new litigation campaign by Dragon Intellectual Property, against Apple, AT&T, Charter, Comcast, Cox, DirecTV, Dish Network, Sirius XM Radio, Time Warner, and Verizon. The patent-in-suit was assigned to Dragon by AccuTrack Systems in 2012 and relates to recording and playback for paused audio or video signals (5,930,444). All of the claims include a limitation for an apparatus with recording and playback “keys”. 12/20, District of Delaware, 1:13cv02058, 1:13cv02061, 1:13cv02062, 1:13cv02063, 1:13cv02064, 1:13cv02065, 1:13cv02066, 1:13cv02067, 1:13cv02068, 1:13cv02069