The Federal Circuit today affirmed a district court’s refusal to award attorneys’ fees in a patent case.  The plaintiff, Digeo, bought a patent on an "as is" basis at a bankruptcy sale and sued the defendant, Audible, for infringement.  Audible discovered a fatal defect in title to the patent — someone had forged one of the signatures on the patent application. 

The forgery related to "Oliver Chang", whom the application falsely represented as the executor of the estate of a dead co-inventor, "Edward Chang".  Audible showed that Oliver Chang didn’t sign the application and that Edward Chang hadn’t died yet.  Digeo sought a voluntary dismissal, which the district court granted.  But the court declined Audible’s request for an award of attorneys’ fees under 35 U.S.C. 285, finding the case not sufficiently "exceptional" under the statute.

The Federal Circuit agreed.  It pointed out that Audible bore the burden of showing exceptionality but had fallen short because it failed to prove that Digeo, when it filed suit, realized that somebody had forged Oliver Chang’s signature or that Edward Chang still lived.  The court accordingly affirmed.  Digeo, Inc. v. Audible, Inc., No. 07-1133 (Fed. Cir. Nov. 1, 2007).

Barry Barnett

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