District Court Did Not Err In Denying Attorneys’ Fees For Appeal And Remand Proceedings That Were Not Independently Exceptional

In Therasense, Inc. v. Becton, Dickinson & Co., No. 12-1504 (Fed. Cir. Mar. 12, 2014), the Federal Circuit affirmed the district court's determination that a party was not entitled to additional attorneys' fees for appeal or remand proceedings, fees for seeking attorneys' fees, prejudgment interest on fees, or postjudgment interest on fees from the time the district court originally deemed the case exceptional to when the district court reinstated its award of attorneys' fees.

Becton, Dickinson and Company ("Becton") sued Therasense, Inc. (now known as Abbott Diabetes Care, Inc.) and Abbott Laboratories (collectively "Abbott"), seeking DJ of noninfringement of U.S. Patent Nos. 6,143,164 ("the '164 patent") and 6,592,745 ("the '745 patent") by Becton's blood glucose test strips. In response, Abbott sued Becton and its supplier, Nova Biomedical Corporation ("Nova"), for infringement of the '164 patent, the '745 patent, and U.S. Patent No. 5,820,551 ("the '551 patent").

The district court granted SJ of noninfringement with respect to the '164 and '745 patents, found nearly all asserted claims of the '745 patent invalid for anticipation, determined that claims 1-4 of the '551 patent were invalid as obvious, and determined that the '551 patent was unenforceable for inequitable conduct. The district court awarded attorneys' fees to Becton and Nova under 35 U.S.C. § 285 with payment due "following the exhaustion of all appeals . . . regarding the validity and unenforceability of the '551 patent, if the Court's inequitable conduct judgment is upheld on appeal." Slip op. at 3 (citation omitted).

During the appeal of the inequitable conduct determination, the Federal Circuit altered the standard for inequitable conduct, and the en banc Court vacated the district court's finding and remanded for further proceedings and vacated the original fee award. On remand, the district court again concluded that the '551 patent was unenforceable for inequitable conduct. Becton and Nova then moved to supplement the fee award with appellate and remand fees, fees spent seeking additional fees, prejudgment interest on fees, and postjudgment interest calculated from the date the district court originally deemed the case to be exceptional. The district court reinstated its original fee award and added postjudgment interest from the date of the reinstatement, but denied the motion for additional fees and interest in all other respects. Becton and Nova appealed the...