Tuesday, February 28, 2023

CAFC does "Ballyhoop." Attorney fee issues.

An attorneyees issue:

Barracuda Tackle LLC, Florida Fishing Tackle Manufacturing Company, Inc., and David Burton Young (collectively, “Barracuda”) appeal the decision of the United States District Court for the Middle District of Florida that denied Barracuda attorney fees under 35 U.S.C. § 285. Dominguez v. Barracuda Tackle LLC, No 8:20-cv-1538- KKM-AEP, 2021 WL 5998127 (M.D. Fla. Dec. 20, 2021). For the reasons set forth below, we affirm.

Some details

Yunior Dominguez and Salt Addict, Inc. d/b/a The Ballyhoop (collectively “Ballyhoop”) filed a complaint against Barracuda for infringement of U.S. Patent No. 10,165,764 (“the ’764 patent”) in the United States District Court for the Southern District of Florida. The ’764 patent is directed to a collapsible fishing bait net, i.e., a net that can be used to capture small fish that can be used as bait to catch larger fish. ’764 Patent col. 1 ll. 12–42. Ballyhoop alleged that Barracuda’s bait nets infringed claims 1 and 3 of the ’764 patent directly or indirectly, either literally or under the doctrine of equivalents.1 Barracuda filed a motion to dismiss, arguing that Ballyhoop had failed to state a claim and that the Southern District of Florida constituted an improper venue for the suit. Barracuda also filed a motion for claim construction, a motion for summary judgment of non-infringement, and a motion seeking sanctions under Federal Rule of Civil Procedure 11 against Ballyhoop for bringing a purportedly frivolous claim. Ballyhoop responded only to the motion to (...)

(...) With regard to Barracuda’s motion for sanctions, the magistrate judge determined that Ballyhoop’s suit was not frivolous and that Ballyhoop had demonstrated an effort to engage in a pre-suit investigation of its infringement claim. “Further,” the magistrate judge noted, “a reasonable juror could conclude that the Accused Product and the collapsible bait net claimed in the ’764 Patent perform substantially the same function with substantially the same result but just not as to the way in which each achieves that result, especially in light of the claims construction.” Id. Accordingly, the magistrate judge recommended that Barracuda’s motion for sanctions be denied. Id.


After judgment was entered in its favor, Barracuda filed a motion seeking an award of attorney fees under 35 U.S.C. § 285. The magistrate judge issued a Report and Recommendation that Barracuda’s request be denied. J.A. 9–21. In reaching this conclusion, the magistrate judge rejected Barracuda’s argument that the case was exceptional because Ballyhoop’s infringement position was unreasonable, noting that, in the context of Barracuda’s motion for sanctions under Rule 11, the court had found Ballyhoop had maintained a nonfrivolous claim for patent infringement and had demonstrated an effort to engage in pre-suit investigation of the claim. J.A. 14–16. The magistrate judge also considered and rejected Barracuda’s argument that the case was exceptional because Ballyhoop had engaged in litigation misconduct and because Ballyhoop had bad-faith motivation in bringing the suit. J.A. 16–18.


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