By Memorandum Opinion entered by The Honorable Richard G. Andrews in Parallel Iron LLC v. NetApp Inc., Civil Action No. 12-769-RGA (D.Del., September 12, 2014), the Court granted the motion for attorneys’ fees of defendant NetApp Inc. after finding that plaintiff Parallel Iron LLC “did act in bad faith, vexatiously, and wantonly as it brought this suit without a good faith basis and then continued to litigate the case via a misleading and prejudicial litigation strategy.” Upon reviewing in camera all materials that Parallel Iron had gathered and created during its pre-suit investigation, the Court determined that Parallel Iron initiated the suit without a good faith belief that NetApp infringed the patents-in-suit. Id. at 11.

Interestingly, in the opinion, the Court initially denies NetApp’s motion for attorneys’ fees under 35 U.S.C. § 285 after finding that NetApp was not a “prevailing party” in the action as required by that statute. See id. at 4-8. A copy of the Memorandum Opinion is attached.

The take away from this opinion is that parties initiating patent infringement actions in the District of Delaware should take the time to be diligent and thorough in conducting their pre-suit investigations of patent infringement.  The accuser must be able to show by documentary evidence a good faith belief that the accused products actually infringe the patents-in-suit and should be able to specifically identify the accused infringing products in their initial disclosures required by the Default Standard for Discovery in the District.