“Exceptionally Weak” Infringement Case Justifies Recommendation of $5.5 Million Attorneys’ Fee Award

Following summary judgment of noninfringement based on a sublicense, the magistrate judge recommended awarding defendant nearly $5.5 million in attorneys’ fees under 35 U.S.C. § 285 . "Not only does the [court's] summary judgment decision show that [plaintiff's] arguments were exceptionally weak, but this is also evidenced by the Federal Circuit’s . . . summary affirmance. . . . Another remarkable aspect of [plaintiff's] defeat is that much of [defendant's] best evidence came from the deposition testimony of [plaintiff's] witnesses, not [defendant's] witnesses. . . . If [plaintiff] had conducted a modicum of due diligence before it filed its complaint it would have learned from these witnesses that its case was doomed."

Bayer CropScience AG, et al v. Dow Agrosciences LLC, 1-12-cv-00256 (DED December 22, 2014, Order) (Schneider, M.J.)