The Baker Botts team recently obtained a win for DISH when the Federal Circuit held that DISH was a “prevailing party” in a long-running case against Dragon Intellectual Property. Over the years, DISH had previously obtained a finding of non-infringement at the District Court and invalidated the asserted claims before the Patent Trial and Appeal Board (“PTAB”). In parallel appeals in 2017, the Federal Circuit also affirmed the invalidity ruling of the PTAB, but dismissed an appeal as to non-infringement for mootness.
DISH sought attorneys’ fees at the District Court because the case was “exceptional” under the patent fee shifting statute (35 U.S.C. 285). But owing to the procedural wrinkle that DISH’s District Court win was mooted, the plaintiff argued DISH had not “prevailed” in the district court action within the meaning of the statute. The District Court allowed the argument and reluctantly denied the fee request. In this most recent appeal, the Federal Circuit reversed the District Court and remanded the case back to Judge Andrews in the District of Delaware for a determination as to exceptionality because DISH actually was the prevailing party.
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