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Despite Prevailing in Patent Infringement Case, Google Must Pay Own Attorney Fees

January 13, 2011 | Posted in : Expenses / Costs, Fee Award, Fee Issues on Appeal, Fee Shifting, Fees as Sanctions / Bad Faith, Prevailing Party Issues

A recent NLJ story, “Federal Circuit Rejects Fee Award to Google, Finding Ky. Company’s Position ‘Not Objectively Baseless’ reports that in a precedential opinion (pdf) by the U.S. Court of Appeals for the Federal Circuit, a Kentucky technology company that lost a patent infringement case against Google, Inc. does not have to pay about $660,000 of Google’s legal bills.  The ruling sets a new standard for finding a patent case exceptional in the context of awarding attorney fees.  In iLOR LLC v. Google Inc., the three-judge panel unanimously reversed the Eastern District of Kentucky’s award of legal fees to Google and remanded the case back to court, holding that iLOR’s patent claims were “not objectively baseless.”

iLOR sued Google, claiming that it infringed on its patent involving technology for using a mouse cursor to open a toolbar over a hyperlink.  U.S. District Court Judge Joseph Hood dismissed iLOR's case and granted summary judgment for Google, finding iLOR's suit objectively baseless.  The court awarded Google $660,351, including $627,039 for attorney fees and the rest for costs, expenses, and expert witness fees.

The Federal Circuit’s ruling, authored by Circuit Timothy Dky, deemed that iLOR’s actions in the case did not involve the type of misconduct that a prior Federal Circuit case ruled was required for fee awards.  According to Federal Circuit case law, courts can impose sanctions (such as paying your opponent's attorney fees) against plaintiffs when there’s no misconduct of the litigation is brought in bad faith or is objectively baseless, Dyk wrote.

iLOR is represented by Frost Brown Todd, LLC and Google is represented by Fish & Richardson, PC.