We're back! During our brief intermission, the Court issued an exceptional case finding in Wireless Discovery LLC v. eHarmony, Inc., C.A. No. 22-480-GBW (D. Del.), and awarded fees.
I always like reading these opinions both (1) as a guide on what not to do and (2) to figure out how to better threaten NPEs with the risk of fee awards. I'm not sure this one is going to be particularly helpful in those regards, because there were some exceptional facts.
First, the patentee filed a patent that asserted previously invalidated claims. Worse, after the accused infringer called them on it, they amended the complaint and asserted the same invalid claims again. The Court found that that alone warranted some fees:
Wireless Discovery contends that "[a]lthough Wireless Discovery did inadvertently mentioned [sic] claims 1-20 of the '875 [platent in its Complaint," its failure was excused because of inadvertence and lack of significant argument time. . . . Wireless Discovery was put on notice of this purportedly inadvertent assertion at least when the initial motions to dismiss were filed. . . . Wireless Discovery responded by filing an amended complaint that again asserted the same knowingly invalid claims. . . . Even if it was inadvertent, repeatedly asserting knowingly invalid patent claims is exceptional conduct. . . . Defendants still had to dedicate briefing space and argument time to these "inadvertent" knowingly invalid claims. . . . Attorneys' fees under § 285 are compensatory, not punitive, and the Court finds that Defendants should be compensated for having to defend against knowingly invalid claims.
Wireless Discovery LLC v. eHarmony, Inc., C.A. No. 22-480-GBW, at 4 (D. Del. Aug. 15, 2024).
Beyond re-asserting the invalid claims, the Court had major concerns with the patentee's § 101 briefing:
Wireless Discovery's briefs opposing dismissal are littered with conclusory arguments. . . . Large portions of the briefing are mere screenshots of the patent, with little to no argument beyond repeating the wording of the patent. . . . Wireless Discovery dedicates multiple pages to an argument that there is "substantial detail for the claimed invention" because the specification includes "detailed flowcharts and diagrams." . . . This lengthy argument is supported by only an unexplained citation to SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1167 (Fed. Cir. 2018). . . . At best, Wireless Discovery's argument is a misplaced enablement argument, and what relevance the specification's flowcharts and diagrams are meant to have on the eligibility analysis is left unsaid. . . .
Wireless Discovery nominally disputed representativeness but, except for the '875 patent, failed to provide "any meaningful argument for the distinctive significance of any claim limitations." . . . With respect to the '875 patent, Wireless Discovery merely stated that claims 11 through 19 "add additional concrete and technical elements and steps requiring separate patentability analysis" while "fail[ing] to describe what additional concrete and technical elements the other claims recite."
Id. at 4-5. The Court pointed out that they basically conceded the Alice Step 1 analysis:
At Alice step one, Wireless Discovery effectively conceded that the asserted patents were directed to the idea of allowing people using mobile devices to share personal information over a network (i.e. a social network). D.I. 54 at 17; Harmony Brief at 13 (describing the '875 patent as "directed to improvements in exchanging information using mobile communications devices, in particular discovering members of a social network by associating their personal attributes to the mobile communications devices for purposes of exchange."). Wireless Discovery provided little to no argument as to how the patent claims are different from the bevy of similar social media patents that have been invalidated. . . . Wireless Discovery spends one paragraph distinguishing contrary precedent without providing any cases addressing analogous technology that came out its way. . . . In attempting to distinguish the precedent, Wireless Discovery merely stated that those cases "did not provide a technical solution for discovery of other mobile devices." . . . Wireless Discovery's argument here could be best characterized as ipse dixit: instead of demonstrating why the asserted patents are non-abstract by citing to relevant precedent, Wireless Discovery takes as axiomatic that the asserted patents are non-abstract and reasons backwards to distinguish them from precedent.
Id. at 5-6. The Court did not care for the patentee's Step 2 analysis either:
At Alice step two, the Court characterized Wireless Discovery's arguments on eligibility as bare assertions," and "conclusionary." . . . As one example, Wireless Discovery's "purported inventive concept for the '267 patent was "easily exchanging contact and/or personal information over the internet for purposes of social interaction by way of mobile devices without limitations to hardware brands." . . . The Court noted that Wireless Discovery was merely "rephrasing the abstract idea and saying it is an inventive concept." . . .
Wireless Discovery, in describing its invented concept, cited only to the specification and never the claims. . . . The Court described the claims of the asserted patents as "quintessential "apply it with a computer' claims." . . .
This was not a close patent eligibility case. . . . Even when faced with the authority demonstrating the weakness of the '875 patent, Wireless Discovery doubled down by improperly amending its complaint. Upon amendment, Wireless Discovery did not add new factual allegations, or even remove the collaterally estopped claims. . . . Instead, Wireless Discovery merely added more patents and continued on with litigation, serving discovery and inflicting costs. . . . Wireless Discovery's litigation strategy in this case "stands out from the others," and thus justifies the awarding of costs.
Id. at 6-7.
But Can It Collect?
The Court did, however, deny as premature a request for discovery as to ownership, directed towards collection of damages. These cases often involve tough collections issues, so we'll see if they come back and ask again.
Judging from the Court's description of the briefing, my guess is that their concerns may well be correct, and this entity may be hardened against any efforts to actually collect fees—although maybe the defendant can at least wind up with ownership of the now-mostly-invalid patent as a consolation prize.
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