Patent Litigation Firm Petitions Supreme Court on Fees

Blackbird Tech filed a petition for a writ of certiorari to the Supreme Court of the United States in its suit against Health in Motion. The petition concerns the factors analyzed in determining if a patent case is exceptional, which would allow the award of attorney’s fees to the prevailing party.

Blackbird, according to its website, “provides a unique opportunity for individual inventors and small companies to realize the value of their patents. By using in-house expertise, rather than expensive law firms, Blackbird Technologies is able to litigate at reduced costs and achieve results that equal or exceed what a law firm would recover.”

According to the petition, the key question presented is: “Can a court consider factors unrelated to the instant case in determining whether a particular case is exceptional, i.e., whether those outside factors are relevant to the strength of a party’s litigating position in that particular case, or the manner in which that particular case was litigated?”

The Petitioner argues that in previous cases the Federal Circuit and district courts erroneously expanded the scope of factors considered in determining exceptionality; therefore, Blackbird Tech argues that this “has put the petitioner at issue in what should otherwise be an isolated determination of whether a particular case is exceptional.” Blackbird argues the courts below have erroneously considered the company’s previous number of suits, while not analyzing those previous cases. Blackbird argues that the Supreme Court should “grant review, correct the Federal Circuit’s error, and remand for further proceedings consistent with the Court’s ruling.”

In the underlying case, Blackbird sued Health in Motion, et al. for patent infringement for selling its at-home fitness trainer. Blackbird made attempts to get financial information from Health in Motion to determine a potential settlement; once provided, it became evident to Blackbird “that its total potential recovery would be in the mid five figures. Knowing that upcoming litigation costs would quickly dwarf that figure, Petitioner aggressively sought to resolve the litigation and cut off further costs for both parties.”

Health in Motion refused to settle and wanted Blackbird to pay its own legal fees. The case was dismissed, but the district court found the case was exceptional in favor of Health in Motion, the Federal Circuit agreed. Blackbird believes the court considered that Blackbird filed “‘over 110’ lawsuits since its inception in 2014,” instead of an analysis of the cases, most of which were settled early.

Blackbird argues that the Supreme Court should grant the petition because the Federal Circuit’s findings: “are unsupported by this Court’s decision in Octane Fitness,” “contradict the objective of the Patent Act,” and they “conflict with its own precedent.” Blackbird Tech argues that if these findings are not reversed, it “will have serious repercussions for Plaintiffs” and other patent holders. For example, Blackbird Tech argues that “[b]oth the district court and Federal Circuit accepted defendants’ narrative that Petitioner was more likely to file a baseless claim and engage in litigation misconduct simply because it files many patent infringement cases. As a result, the courts put the Petitioner at issue, not the case, in determining the case was exceptional. Respondents never even attempted to present any analysis of those prior cases to either court.”