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Fed Circuit: 'Litigation Misconduct' Led to Million-Dollar Award

By Dyanna Quizon, Esq. on January 11, 2012 | Last updated on March 21, 2019

When it comes to filing a lawsuit, it's a problem if you can't construct a claim properly.

The attorneys for plaintiff MarcTec LLC conducted such egregious "litigation misconduct" in a medical patent suit that the Federal Circuit Court of Appeals affirmed a lower court's decision to award defendants Johnson & Johnson and Cordis $4 million in attorney fees and costs because the case was "exceptional..

The original suit involved patents for various surgical implants that are heat-bonded to antibiotic-containing polymer material.

Both the Federal Circuit and the lower court found fault in the plaintiffs' claim construction and use of unreliable expert testimony. The former reportedly "misrepresented both the law of claim construction and the constructions ultimately adopted by the court." MarcTec had argued for a plain meaning interpretation of a term at issue despite clear language in the specification and prosecution history contradicting that interpretation. Further, the expert testimony "failed to meet even minimal standards of reliability."

MarcTec's "baseless" and "frivoulous" allegations, as well as its "bad faith" actions, convinced both courts that the case was exceptional and the multi-million dollar award of attorney fees and case expenses reasonable. Cases are deemed exceptional for various reasons, including willful infringement, fraud or inequitable conduct in securing the patent, misconduct during litigation, and vexatious or unjustified litigation.

Given the errors, it probably isn't a surprise that the defendant had already been won a motion for summary judgment - which was also affirmed by the Federal Circuit - of non-infringement on the original lawsuit in 2010.

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