Checkpoint Systems, Inc. v. All-Tag Security S.A., No. 16-1397 (Fed. Cir. 2017)Annotate this Case
The 555 patent relates to anti-theft tags that are attached to merchandise and deactivated when the goods are purchased. The accused tags are manufactured in Europe and imported into the U.S. Checkpoint brought an infringement suit. A jury found the patent not infringed, invalid, and unenforceable. The court found the case to be “exceptional” under 35 U.S.C. 285 because Checkpoint’s expert witness based his infringement opinion on an examination of tags that were manufactured by All–Tag in Switzerland, although the accused tags were manufactured in Belgium, and awarded the defendants $6.6 million in attorney fees, costs, and interest. On remand from the Supreme Court, the Federal Circuit instructed the district court "that tests or experiments on the actual accused products are not always necessary to prove infringement.” The district court again found the case exceptional, citing the same ground, and found Checkpoint’s pre-suit investigation, based on a European infringement verdict against All–Tag on a 555 patent counterpart and infringement opinions from counsel, inadequate because the opinions “were given years before filing.” The court cited Checkpoint’s “improper motivation.” The Federal Circuit reversed, noting that the tags tested by the expert were produced on the same machines that were transferred to Belgium. The claim of infringement was reasonable and the litigation was not brought in bad faith or with abusive tactics.
The court issued a subsequent related opinion or order on August 31, 2017.