`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF PENNSYLVANIA
`
`
`
`
`
`
`
`
`
`DRONE TECHNOLOGIES, INC.,
`
`
`Plaintiff
`
`
`
`
`
`
`
`
`
`
`
`v.
`
`
`
`
`
`
`
`
`PARROT S.A. and PARROT, INC.
`
`Defendants
`
`
`
`
`
`
`
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`Civil Action No. 2:14-cv-00111
`
`Judge Arthur J. Schwab
`
`
`FILED ELECTRONICALLY
`
`
`
`
`PLAINTIFF DRONE TECHNOLOGIES, INC.’S MOTION FOR
`AN EXCEPTIONAL CASE FINDING UNDER 35 U.S.C. § 285,
`AND FOR FEES PURSUANT TO RULE 54(d), FED. R. CIV. P.
`
`On November 3, 2014, this Court entered a default judgment against Defendants as to
`
`liability. Doc. No. 107. Believing that judgment to be final except for an accounting (28 U.S.C.
`
`§1292(c)(2)), Defendants immediately filed a Notice of Appeal. Doc. No. 108. To ensure
`
`compliance with Rule 54(d), Fed. R. Civ. P., Plaintiff Drone Technologies, Inc. moves to claim
`
`attorney’s fees and related nontaxable expenses “no later than 14 days after the entry of
`
`1
`judgment.” Id.
`
`
`
`Section 285 of the Patent Act authorizes a district court to award attorney’s fees in patent
`
`litigation. It provides, in its entirety, that “[t]he court in exceptional cases may award reasonable
`
`attorney fees to the prevailing party.” 35 U. S. C. § 285. Until recently, Federal Circuit
`
`precedent required that “[a] case may be deemed exceptional” under § 285 only in two limited
`
`circumstances: “when there has been some material inappropriate conduct,” or when the
`
`1
`
`
`
`Plaintiff is not seeking duplicate recovery of fees and expenses assessed under Rule
`37(b)(2)(C). Plaintiff notes, however, that under Rule 54(d)(2)(E), fees and expenses
`ordered under Rule 37(b)(2)(C) are not subject to the requirements of Rule
`54(d)(2)(A)-(D).
`
`- 1 -
`
`
`
`Case 2:14-cv-00111-AJS Document 117 Filed 11/17/14 Page 2 of 3
`
`litigation is both “brought in subjective bad faith” and “objectively baseless.” Brooks Furniture
`
`Mfg., Inc. v. Dutailier Int’l, Inc., 393 F.3d 1378, 1381 (Fed. Cir. 2005).
`
`In April 2014, however, the Supreme Court overruled Federal Circuit precedent and held
`
`the word “exceptional” in the statute should be interpreted according to its ordinary meaning.
`
`Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749, 1756 (2014). In Octane,
`
`the Supreme Court held that an “exceptional” case “is simply one that stands out from others
`
`with respect to the substantive strength of a party’s litigating position (considering both the
`
`governing law and the facts of the case) or the unreasonable manner in which the case was
`
`litigated.” Id. “District courts may determine whether a case is ‘exceptional’ in the case-by-case
`
`exercise of their discretion, considering the totality of the circumstances.” Id.
`
`As set forth fully in this Court’s Memorandum Opinion dated November 3, 2014 [Doc.
`
`No. 107], this case is “exceptional” under the standard articulated by the Supreme Court in
`
`Octane and under the more stringent standard previously applied by the Federal Circuit. After
`
`all, this Court found that “Defendants have proactively and steadfastly refused to comply with
`
`Orders of Court.” Doc. No. 106, at 14. This Court further held that Defendants’ “unprecedented”
`
`conduct during discovery “presents this Court with the first instance of such tactical and
`
`pervasive defiance in a patent case.” Id. at 16. Defendants “have consciously and willfully
`
`chosen to defy the Court’s Orders in order to delay this litigation, attempt to obtain some tactical
`
`advantage, or for some other unknown reason. . . . Defendants have acted in bad faith.” Id. at 22.
`
`By this reference, Plaintiff incorporates in full this Court’s Memorandum Opinion dated
`
`November 3, 2014. Doc. No. 106.
`
`
`
`- 2 -
`
`
`
`Case 2:14-cv-00111-AJS Document 117 Filed 11/17/14 Page 3 of 3
`
`Under the standard set forth in Octane Fitness, this case undoubtedly “stands out from
`
`others . . . given the unreasonable manner in which the case was litigated.” 134 S. Ct. at 1756.
`
`Accordingly, Plaintiff respectfully requests that this Court find this case exceptional under
`
`35 U.S.C. § 285, and award Plaintiff its attorney’s fees and related non-taxable expenses.
`
`Plaintiff will provide support for the amount of fees at the time and in the manner directed by
`
`this Court. A proposed Order is filed concurrently herewith.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`s/ Gene Tabachnick
`Richard T. Ting
`PA I.D. No. 200438
`rting@beckthomas.com
`
`
`
`
`
`Gene A. Tabachnick
`PA I.D. No. 73032
`gtabachnick@beckthomas.com
`
`Charles H. Dougherty, Jr.
`PA I.D. No. 83795
`cdougherty@beckthomas.com
`
`John C. Thomas III
`PA I.D. No. 85532
`jthomas@beckthomas.com
`
`Clay P. Hughes
`PA I.D. No. 200033
`chughes@beckthomas.com
`
`Beck & Thomas, P.C.
`1575 McFarland Road
`Suite 100
`Pittsburgh, PA 15216
`Phone: (412) 343-9700
`Fax: (412) 343-5787
`
`Attorneys for Plaintiff-Counter Defendant
`Drone Technologies, Inc.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`- 3 -
`
`Dated: November 17, 2014
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
