Attorneys Fees Awarded for Inequitable Conduct During Prosecution of Patents in Suit

Monsanto Company v. Bayer Bioscience N.V., [2007-1299] (April 23, 2008) [BRYSON, GAJARSA, and LINN] NON-PRECEDENTIAL The Federal Circuit affirmed the award of attorney fees to Monsanto under 35 U.S.C. § 285.
BRIEF: The district court concluded that attorney fees were warranted because Bayer’s inequitable conduct in the prosecution of the four patents made the case exceptional. LOF: Whether a case is exceptional under § 285 is a factual question reviewed for clear error. Bayer did not challenge the discretionary determination to award attorney fees, but rather Bayer argued that the district court erred in finding that each of the four patents was procured through inequitable conduct. The Federal Circuit held that this was law of the case, from previous decision that Bayer appealed and lost, and could not be relitigated.