In the long-standing patent dispute between Sophos and RPost, Judge Casper recently issued the oft-sought but rarely received award of attorneys’ fees, after finding that the case was “exceptional.”

The suit began in 2013, when Sophos sought a declaratory judgment of non-infringement and invalidity against RPost’s patent, which was directed to a “system and method for verifying delivery and integrity of electronic messages.” At the end of last year, Judge Casper entered summary judgment invalidating RPost’s patent on the ground that it was anticipated by several prior art patents.

After Sophos prevailed at summary judgment, it took the additional step of moving to recover its attorneys’ fees for a five month period culminating in the Court’s summary judgment decision. As to why the case was allegedly “exceptional,” Sophos focused on RPost’s litigation positions and conduct during discovery. Regarding RPost’s litigation positions, Sophos noted that RPost’s expert repeatedly changed his infringement opinions, that RPost failed to challenge Sophos’s invalidity contentions in any meaningful way, and that RPost did not provide factual support for its damages claim. In addition, as to RPost’s alleged discovery misconduct, Sophos argued that RPost failed to respond to discovery requests, did not adequately prepare 30(b)(6) witnesses, and did not engage experts in a timely manner. RPost’s response, the Court noted, characterized this discovery conduct as “minor irritations,” but did not dispute the substance of Sophos’s allegations.

The Court found that this conduct—taken together—was sufficient to constitute an “exceptional case” warranting an award of attorneys’ fees. According to the Court, RPost had effectively “failed to engage in discovery at several critical junctures,” and “failed to provide any support in the record for a number of positions it took at summary judgment, including the specific contours of its infringement case . . . .”  The Court determined that “[w]hile perhaps none of these alone would constitute an ‘exceptional case,’ the cumulative effect of them here do.” However, the Court reserved its decision on the amount of fees, ordering the parties to submit additional briefing.

The case is Sophos Inc. v. RPost Holdings, Inc., et al., No. 1-13-cv-12856, in the District of Massachusetts.  A copy of the opinion can be found here.