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Attorney Fees And Equal Treatment For Plaintiffs And Defendants

Publication Date: 
July 09, 2010
Dennis Crouch

Professor Mark Lemley and his team at Durie Tangri LLP are noted for filing an appeal for Netflix for an en banc hearing by the Federal Circuit. Dennis Crouch of Patently-O blogs:

This case involves a classic “improvement patent” scenario. Nick Gross was a longtime Netflix user when he came-up with the idea that the service should provide additional user notifications — such as when the movie queue runs dry. Just before filing suit, Gross and partners formed Media Queue as a holding company. Media Queue then sued Netflix, Blockbuster, and others for patent infringement. Nick is also a patent attorney and a nice guy. We met at a conference last spring.

After construing the claims, the district court dismissed the case based on its summary judgment finding of non-infringement. The court, however, refused to award attorney-fees to the defendants because the case was not entirely frivolous or filed in bad faith. Media Queue has appealed the summary judgment. However, the more interesting aspect of the case is the counter-appeal by Netflix asking the Federal Circuit for an en banc hearing to on the issue of when a court may find an “exceptional case” and award attorney fees to the prevailing party. In particular, Netflix argues that the current law of attorney-fee awards is imbalanced in favor of the plaintiff-patentee.


The appeal is filed by Mark Lemley’s team at Durie Tangri. Amazon, Facebook, Microsoft, Oracle, Toyota, and others “frequent defendants” have filed briefs supporting en banc hearing.


Download 2010-07-01 Petition for Hearing En Banc
Download 2010-07-01 Netflix Principal and Response Brief