458 F.2d 1200 (7th Cir. 1972), 71-1290, Dole Valve Co. v. Perfection Bar Equipment Co.

Docket Nº:71-1290.
Citation:458 F.2d 1200, 173 U.S.P.Q. 581
Party Name:The DOLE VALVE COMPANY, Plaintiff-Appellant, v. PERFECTION BAR EQUIPMENT COMPANY, Inc., Defendant-Appellee.
Case Date:April 24, 1972
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 1200

458 F.2d 1200 (7th Cir. 1972)

173 U.S.P.Q. 581

The DOLE VALVE COMPANY, Plaintiff-Appellant,

v.

PERFECTION BAR EQUIPMENT COMPANY, Inc., Defendant-Appellee.

No. 71-1290.

United States Court of Appeals, Seventh Circuit.

April 24, 1972

Argued Feb. 17, 1972.

Lewis T. Steadman, John D. Simpson, Robert A. Stenzel, Hill, Sherman, Meroni, Gross & Simpson, Chicago, Ill., for plaintiff-appellant.

William Marshall Lee, Richard G. Lione, Hume, Clement, Hume & Lee, Ltd., Chicago, Ill., for defendant-appellee.

Before DUFFY, Senior Circuit Judge, SPRECHER, Circuit Judge, and ESCHBACH [*] , District Judge.

DUFFY, Senior Circuit Judge.

This is the second appeal taken by the plaintiff in this action. The issue now before us is an award of attorney fees by the District Court resulting from the earlier proceedings.

Our previous decision in this case held that Kromer Patent No. 3,162,323 in suit, owned by plaintiff (Dole), to be invalid for obviousness, but if valid, infringed by two of the three accused devices. 1

Defendant (Perfection), appellee in this action, made a request under 35 U.S.C. § 285 2 for an award for attorney fees, pending the outcome of a counterclaim

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filed by defendant, charging violations of the Clayton Act. 3

Following dismissal of the counterclaims, 4 the District Judge considered the motion now before us on appeal and pursuant to said motion, made an award of $35,000 to cover the three and one-half day trial and associated expenses of litigation to the defendant as permitted by 35 U.S.C. § 285 "in exceptional cases." The District Court found that this generous allowance was justified by a combination of factors including bad faith, inequitable conduct and lack of candor.

The District Court made the finding that Dole acted in bad faith when it continued to prosecute the infringement action against Perfection after being apprised of two German Laubach patents which purportedly disclosed the Kromer patent. The District Court was of the opinion that Dole should have dismissed the lawsuit promptly after being so advised more than four months before trial; that the patent action was prosecuted in bad faith and the defendant may be entitled to attorneys' fees under 35 U.S.C. § 285.

Dole testified that after a consideration of the Laubach patents, its counsel was of the opinion that the Laubach...

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