A recent Law 360 story by Nadia Dreid, “Fed. Circ. Not Sure Court Muddled Fee Award in Patent Fight,” reports that the Federal Circuit seemed wary of overturning a decision awarding attorney fees to HP Inc. and SAP America after they emerged victorious from a patent dust-up with software maker Big Baboon Inc. that a lower court declared was unfairly waged.  While Big Baboon worked to convince a three-judge panel that the California federal court that handled the patent dispute "basically awarded fees based on some arbitrary line in the sand," U.S. Circuit Judge Kathleen O'Malley wasn't sure about that — particularly the company's contention that it couldn't be forced to shell out attorney fees without evidence of misconduct.

"I don't understand your statement that litigation misconduct is required before fees can be awarded," she said.  "What the court found was that the pursuit of litigation was objectively unreasonable, right?"  The parties were before the court to argue two different appeals: whether the lower court flubbed when it threw out the software maker's case and whether it was within its rights to order Big Baboon to pay $188,000 in attorney fees.

On one side, patent holder Big Baboon, which has been battling with HP and SAP America for a while over claims that a product they sold in 1996 infringed one of its e-commerce patents, argues that the lower court ignored contradictory testimony from the tech companies when it threw out its case and that it unfairly ordered it to pony up attorney fees without evidence of misconduct.

On the other side, HP and SAP America say they're owed the $188,000 in attorney bills that they ran up preparing for the discovery that Big Baboon was refusing to delay — even though the suing software maker had evidence that showed that the allegedly infringing product existed before the e-commerce design at issue.

"This case is exceptional because Big Baboon doesn't know when to stop, no matter how weak its position," counsel for HP and SAP America told the court.  The tech companies accused the software company of "abusively [filing] serial suits," pointing toward a suit against HP's predecessor in 2009 over the same patent, albeit with different claims.