The "prevailing party" in a patent case is entitled to attorney fees from the losing side under 35 U.S.C. 285. However what constitutes a "prevailing party" sometimes can be difficult to determine. Judge Moon recently held that a defendant who defeated a motion for preliminary injunction and obtained a dismissal of all claims for failure to prosecute was not a "prevailing party" despite the defendant's success. The lawsuit, filed in the Charlottesville Division of the Western District of Virginia, involved patent infringement of a pocketed bra design. The court's rational for denying the motion for fees was based upon existing precedent regarding similar circumstances. A plaintiff who obtains a preliminary injunction is not a "prevailing party" because preliminary injunction proceedings are a necessarily abbreviated inquiry into the merits of a case. Therefore, the court concluded that if a plaintiff who obtains a preliminary injunction is not a "prevailing party" then it logically follows that a defendant who defeats a preliminary injunction is similarly not a "prevailing party." Also, the court's subsequent dismissal, without prejudice, of plaintiff's claims for failure to prosecute was not an adjudication on the merits and therefore did not confer "prevailing party" status. The case is styled Robinson v. Bartlow, No. 3:12cv024 (W.D.Va. 2014).