Nintendo Denied Fees After Wii Suit Crumbles

     (CN) – Nintendo and Sony cannot get attorneys’ fees after defeating patent infringement claims from Copper Innovations over Wii controllers, a federal judge ruled.
     In December 2007, Copper Innovations Group LLC, of Wilmington, Del., sued Nintendo and Sony in the Western District of Pennsylvania, claiming that several Wii consoles and controllers – including the nunchuk, wheel, and zapper – infringed on Copper’s 1996 patent for a hand-held computer input apparatus and method.
     After Copper served and supplemented its infringement contentions in 2008, Nintendo and Sony challenged the infringement claims in 23 separate instances.
     U.S. Magistrate Judge Amy Reynolds Hay filed a 59-page report and recommendation on claim construction in 2009.
     U.S. District Judge David Stewart Cercone revised Hay’s recommendation on May 11, 2011, tossing aside Copper’s claim that the report imported a limitation from a preferred embodiment not present in the claims.
     “The report’s recommendation is based on how a person having ordinary skill in the art would read the claims in light of the entire specification, not simply a section heading and boilerplate language of alternative embodiments,” Cercone wrote.
     In February 2012, Cercone struck Copper’s second supplement to its infringement contentions because he found that it would conflict with local patent rules.
     “Defendants challenged plaintiff’s literal infringement contentions in 23 different instances on Oct. 3, 2009,” Cercone wrote. “Plaintiff did not raise the doctrine of equivalents until the unfavorable claims construction rulings were entered on May 11, 2011. Plaintiff was aware of the challenges and failed to advance its alternative position for years. Substantial resources were expended in an effort to shape and define the litigation in the interim. Given these circumstances the time for asserting the alternative position had long passed.”
     He later added: “The second supplement now asserts the complete opposite theory of infringement with no explanation for doing so beyond the court’s unfavorable claims construction ruling. Permitting plaintiff to shift its infringement theories in such a manner would subject defendants to a ‘king’s ransom.'”
     That summer, Cercone granted Nintendo and Sony’s summary judgment, holding that “there are no genuine issues for trial” and “no operative response demonstrating that material issues of fact remain in dispute.”
     He denied Nintendo’s motion for attorneys’ fees and nontaxable costs Wednesday.
     “As noted by plaintiff: ‘Copper presented an amended infringement contention that was based on the court’s claim construction and the evidence,” the ruling states. “The court struck that theory, as untimely brought, eight months later, and on the same basis struck the summary judgment response.’ It then granted defendant’s summary judgment based on the motion as presented.
     “In presenting this theory, plaintiff was entitled to test the boundaries of Local Patent Rule 3.7 and in doing so plaintiff did not venture into a course of conduct warranting sanctions under either 35 U.S.C. § 285 or 28 U.S.C. § 1927. Leeway properly is permitted for colorable advancement of new and/or expansive applications of the law regardless of whether such attempts are successful in the first instance. Furthermore, the fact that plaintiff chose to judiciously limit the issues presented on appeal does not change the nature of plaintiff’s approach in litigating its claims to conclusion in this court or otherwise warrant the extraordinary relief requested.”

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