One of the questions Courts have to answer when presented with an application for attorneys' fees under 35 U.S.C. § 285 is when to start the clock running on fees. The analysis can include objective and subjective factors, but in general (in this District at least) a patentee has to push through multiple warning signs and opportunities for reevaluation before its continued assertion of infringement will justify an award of fees.
Earlier this week, Judge Andrews awarded fees for plaintiffs' continued assertion of infringement after (1) an adverse claim construction decision and (2) subsequent notice from the defendant of non-infringement. After the Court granted summary judgment of non-infringement, the defendant moved for fees.
Judge Andrews quickly disposed with the …
