“Exceptional” Circumstances Will Justify an Award Attorneys’ Fees to Successor in Intellectual Property Cases in the 3rd District

Posted on June 17th, 2015 by Legal Fee Advisors

A Delaware United States Magistrate recently awarded $5.5 million in attorneys’ fees to successor, Dow Agrosciences LLC, in its defeat against Bayer CropScience AG’s accusation that Dow had committed licensing violations with regards to a genetically modified soybean seed.[1]

This decision reverses the United States District Judge’s rejection, without prejudice, of Dow’s fee application pending a decision in a United States Supreme Court case which would possibly allow for such payment of fees depending on their decision in that case.[2] That Supreme Court decision subsequently set a new “exceptional” case standard which allows for payment of fees to a victorious defendant and Dow reapplied for payment of fees.[3] In awarding these attorneys’ fees, U.S. Magistrate Judge Joel Schneider did not hold back in his opinion that Bayer filed their complaint without conducting a due diligence investigation of the evidence to support their allegations and that one Bayer seemingly could tell that their case was “going nowhere” they should have abandoned the action rather than “forging ahead.”[4] The U.S. Magistrate went further to point out that it was statements from Bayer’s very own witnesses that weighed quite heavily against Bayer in making its determination that there was a lack of due diligence investigation.[5]

It seemingly appears that the courts are aiming towards, what some may call, punitive “damages” against those whose cases clog up the courts for legally unjustifiable reasons. Plaintiffs beware! It is understandable that insufficient investigations giving rise to the filing of meritless complaints will not likely be tolerated in 2015 and beyond.

Dawn E. Guglielmo, Esq.

Bayer CropScience AG v. Dow AgroSciences LLC, No. 126, 2013 WL 5539410 (D. Del. Oct. 7, 2013), aff’d, 580 F. App’x 909 (Fed. Cir. 2014)

[1] Kat Greene, Bayer Owes Dow $5.5M Atty Fee In IP Fight, Magistrate Says, Law360, http://www.law360.com/articles/607166/bayer-owes-dow-5-5m-atty-fee-in-ip-fight-magistrate-says (December 22, 2014).

[2] Id.

[3] Id. [Note: Dow did not reapply for payment of attorneys’ fees based on this “exceptional” case standard. Rather, Dow argued an inadequate “prefiling investigation” resulted in a “meritless” claim being brought.]

[4] Id.

[5] Id.