Sarif Biomedical LLC v. Brainlab, Inc. et al., C.A. 13-846-LPS, September 27, 2016.

Stark, C. J. Defendants’ motion for attorneys fees is denied.

The disputed technology relates to an apparatus for performing computer assisted microsurgery. The court previously found all asserted claims invalid for indefiniteness after a claim construction hearing.  The parties stipulated to a final judgment of invalidity and noninfringement.  The court finds the case is not exceptional since there is no basis to conclude that this case should not have been brought.  The court finds that plaintiff had a good faith basis belief that its claims were not indefinite, although that belief was ultimately found to be incorrect.  It provided detailed arguments, grounded in intrinsic evidence, in support of its constructions.  The court did not find any of the plaintiff’s positions or expert opinions to be unusually weak.  Plaintiff’s conduct in continuing the litigation after PTAB proceedings where two claims were invalidated as indefinite but not the seven claims litigated in the district court. It is not unusual for a party to revise its claim construction positions over the course of the litigation. The fact that a prior owner of the patent did not assert the patent in litigation is of no moment, nor have defendants demonstrated that this was a nuisance suit.  Plaintiff’s status as a non-practicing entity, its decision to allege infringement against several other entities and its decision to settle other cases do not combine to establish that this case was always meritless or predatory.  Nothing about this case stands out as exceptional.