Checkpoint wins on attorney fees at CAFC

The losing plaintiff-patentee appealed an award of attorney fees under 285, and secured a reversal of the award by ED PA.

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All-Tag then moved for attorney fees pursuant
to 35 U.S.C. §285:
The court in exceptional cases may award
reasonable attorney fees to the prevailing party.
The district court granted the motion. The court
explained
that the case was exceptional because Checkpoint
through its expert witness
did not inspect the tags it
accused of infringement, despite having ample opportunity to do so.

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AND

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All
-
Tag’s admission that
its products are made
“generally in accordance” with
its patents could reasonably have been relied
on by Checkpoint and its expert Dr. Zahn. Such reliance was not
“objectively baseless.”
See Martek Biosciences Corp. v.
Nutrinova, Inc.
, 579 F.3d 1363, 1374 (Fed. Cir. 2009)
(rejecting “a general rule requiring one who alleges in-
fringement of a claim containing functional limitations
to perform actual tests or experiments on the accused product or method

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link: http://www.cafc.uscourts.gov/images/stories/opinions-orders/12-1085.Opinion.3-21-2013.1.PDF