Opinion
No. 00 C 7402
July 2, 2001
MEMORANDUM OPINION AND ORDER
Plaintiff sued defendant for patent infringement. Defendant moved to dismiss, claiming that this court lacked personal jurisdiction. It relied, however, on the wrong statutes and did not file an affidavit. We pointed out the defects, and defendant tried again — filing a memorandum, without affidavit, taking the same position it had taken before. Finally, with its reply brief, defendant filed an affidavit that gave substance to its motion to dismiss. Plaintiff moved to strike, contending that the affidavit came too late. It also asked for attorneys' fees.
We deny, for now, the petition for fees. If the motion to strike fails (which is likely) and in fact the action should have been filed in California, not here, then the onus of wasted efforts will in all likelihood fall on plaintiff. If that were so, then we would not be disposed to awarding fees for responding to an amended motion to dismiss that never should have been filed in the form it was.
At the same time, we note that we would transfer the case to California should defendant prevail on its jurisdictional position and that defendant apparently is prepared to concede that it sold an inexpensive product that was a "knockoff" of the patented device. If that is so, then defendant could be vulnerable for attorneys' fees pursuant to 35 U.S.C. § 285. See L.A. Gear. Inc., v. Thom McAn Shoe Co., 988 F.2d 1117, 1128 (Fed. Cir. 1993), cert. denied, 510 U.S. 908. In those circumstances we suggest that the time has come for the parties to resolve their differences without the continuing expenditure of money and attorneys' time.