Varian Semiconductor had sued Advanced Ion Beam Tech. for infringement of Patent No. 7,301,156 directed to implanter ion-beams. After eight months of litigation the plaintiff granted the defendant a covenant not to sue and the court granted a joint motion dismissing all initial claims and counterclaims with prejudice. The parties agreed that defendant AIBT was the prevailing party but not that the case was exceptional. Later counterclaims filed by AIBT directed to antitrust and sham litigation were dismissed without prejudice. AIBT moved for fees in this case and simultaneously filed a new antitrust case against Varian. (09-11448-NG)
Magistrate Judge Dein denied the request for fees noting (as she did when dismissing the sham litigation counterclaims) that AIBT had insufficient evidence to even plead fraud on the Patent Office, let alone meet the clear and convincing burden to show that such fraud occurred to thereby classify this case as exceptional. Costs, however, were awarded since AIBT was the prevailing party.
Varian Semiconductor Equip. Assoc., Inc., et. al. v. Advanced Ion Beam Tech., Inc., 08-10487-NG (D. Mass. May 25, 2010)