The opinion of the court was delivered by: Campbell, District Judge.
This matter is now before the Court on defendant's motion for
the allowance of reasonable attorneys' fees. This is a patent
case wherein plaintiff charged defendant with infringement. The
cause was originally assigned to my calendar, but later assigned
to Judge Shaw, who heard evidence on the single issue of laches,
reserving other issues pending disposition of that issue. Judge
Shaw found the issue of laches in defendant's favor. At that
time, defendant requested allowance of attorneys' fees in the sum
of $7,720, but was allowed only $1,000, which amount has been
paid by plaintiff.
Judge Shaw's decision was affirmed by the Court of Appeals of
this Circuit on June 7, 1950, 7 Cir., 182 F.2d 945, and
certiorari was subsequently denied by the United States Supreme
Court, 340 U.S. 865, 71 S.Ct. 89. Defendant now seeks allowance
of fees incurred for services rendered in the Court of Appeals
and the Supreme Court, $3,700 and $820 respectively.
The Court derives its authority to allow attorneys' fees in
patent cases from 35 U.S.C.A. § 70, which provides in part: "* *
* The court may in its discretion award reasonable attorney's
fees to the prevailing party upon the entry of judgment on any
patent case." Admittedly, fees should not be allowed as a matter
of course in the ordinary patent case, but should be reserved for
the situation where one party has been guilty of some inequitable
or unconscionable conduct. In the instant case, the Court of
Appeals stated at page 948 of 182 F.2d:
"In the case at bar the record shows not only a long delay on
the part of the plaintiff in instituting litigation on his claims
of infringement, but also such a change in the condition of the
defendant that it would be inequitable to allow plaintiff to
enforce his claim for infringement. Not only has the defendant
expended large sums of money in the extension of its
manufacturing facilities, but two of its most important witnesses
have passed away.
"The plaintiff offers no legally adequate excuse for his
inaction. * * *"
In view of the foregoing, it would appear that the Court of
Appeals was of the opinion that plaintiff's activities
constituted inequitable conduct. Therefore, fees properly should
be allowed in this case.
It should be noted that recovery of fees is not limited to
proceedings before the trial court, but may be awarded for
services performed upon appeal. See Blanc v. Spartan Tool Co., 7
Cir., 178 F.2d 104; Jerome v. 20th Century-Fox Film Corp., 2
Cir., 165 F.2d 784; and Falkenberg v. Bernard Edward Co., 85
U.S.P.Q. 127. The Court is of the opinion, however, that the
reasonable value of the legal services rendered upon appeal of
the cause is $2,500 in the United States Court of Appeals for the
Seventh Circuit and $500 in the United States Supreme Court.
Defendant's motion for the allowance of reasonable attorneys'
fees is granted, and defendant is hereby awarded same in the sum
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