A recent The Recorder story, “Federal Circuit OKs $12 Million Fee Award in ‘Exceptional’ Patent Case,” reports that the U.S. Court of Appeals for the Federal Circuit has upheld a $12 million “exceptional case” attorney fee award in a San Diego patent case involving GPS technology.  The ruling in Gabriel Technologies v. Qualcomm is a win for Cooley, which has been litigating the case for Qualcomm Inc. since 2008.

The ruling was issued as nonprecedential, but it nevertheless demonstrates the Federal Circuit is ready and willing to affirm Section 285 fee awards under the new standard it set out in December in Kilopass Technology v. Sidense.  The fact that the U.S. Supreme Court is reconsidering the standard of review for such fee awards didn’t deter Judges Alan Lourie, Haldane Mayer and Raymond Chen.

Gabriel’s original law firm, Munck Carter, withdrew in 2010, according to the Federal Circuit’s opinion.  Gabriel board member John Hall then sent an email to the company’s CFO, stating, “There are only a few full contingency firms that can afford to take on a case of this size and complexity.  They won’t touch this case because we have no case.  Just a lot of talk.”

Hughes Hubbard did take the case on a contingency basis, but the U.S. District Judge Michael Anello of the Southern District of California ordered the company to post an $800,000 bond and warned “there is a strong likelihood defendants will ultimately prove this case is exceptional, and attorneys’ fees will be warranted at the conclusion of the litigation.”

Anello was right. U.S. District Judge Amthony Battaglia eventually ruled for Qualcomm, found the case exceptional and ordered Gabriel to pay Qualcomm $11.6, plus the $800,000 bond.  The Federal Circuit affirmed both on the merits and on the exceptional-case finding.  “In many cases, unearthing evidence sufficient to establish a litigant’s subjective bad faith is challenging,” the court stated.  “This is not such a case.”