Blackbird Tech LLC v. Health in Motion, LLC, No. 18-2393 (Fed. Cir. 2019)Annotate this Case
Blackbird sued HIM for infringement of a patent relating to exercise equipment. Blackbird is owned and controlled entirely by attorneys, whose business model consists of purchasing patents and monetizing them “through litigation.” Nineteen months later, after a transfer of venue, Blackbird offered to settle for $80,000. HIM declined, asserting that the infringement allegations lacked merit and that HIM believed there was a strong likelihood that Blackbird would be ordered to pay attorney fees. Blackbird made another t offer, for $50,000. Again, HIM declined. Months later, Blackbird offered to settle for $15,000. HIM declined, again requesting that Blackbird pay some of its expenses. Blackbird then offered a “walk-away” settlement whereby HIM would receive a license to Blackbird’s patent for zero dollars, and the case would be dismissed. HIM declined. During discovery, HIM moved for summary judgment. After the motion was briefed and without notifying HIM in advance, Blackbird filed a notice of voluntary dismissal with prejudice, executed a covenant not to sue, and moved to dismiss for lack of subject matter jurisdiction. The district court dismissed Blackbird’s claims with prejudice, denied Blackbird’s motion to dismiss, and authorized HIM to seek costs, expenses, and attorney fees. The Federal Circuit affirmed an award to HIM of fees and expenses in the requested amount ($363,243.80), upholding findings that Blackbird’s litigation position was “meritless” and “frivolous.” Blackbird litigated in an unreasonable manner and the court properly considered the need to deter future abusive litigation.