Wargaming Awarded Attorney’s Fees for Game and Technology Co. Ltd’s Improper and Unreasonable Litigation Tactics

Game and Technology Co. Ltd v. Wargaming Group, Ltd
Case No. 2:16-cv-06554
United States District Court for the Central District of California
Filed July 9, 2015

On October 20th, a District Court judge awarded Wargaming Group Ltd (“Wargaming”) $142,694 in attorney’s fees, finding that Game and Technology Co. Ltd (“GAT”) used improper and unreasonable tactics during an inter partes review (“IPR”) before the Patent Trial and Appeal Board (“PTAB”).

This stems from a 2015 suit in which GAT alleged that Wargaming infringed U.S. Patent No. 7,682,243 (“the ’243 Patent”), titled “Method for providing online game which changes pilot data and unit data in gear and system thereof.” That suit was stayed pending Wargaming’s petition for IPR of the ’243 Patent. As we previously reported, on September 7, 2018, the PTAB concluded that the claims challenged by Wargaming are unpatentable, which the Federal Circuit affirmed.

However, over the course of fighting the IPR, GAT argued that Wargaming could not challenge the ’243 Patent in an IPR because it was time-barred. Although GAT later found out that it had served Wargaming with deficient summons, it continued to represent that Wargaming had been properly served. GAT also changed its position on proper service multiple times during the IPR and appeal to the Federal Circuit, with the Federal Circuit noting: “[l]ike certain shapeshifting characters in Dungeons & Dragons, GAT’s evolving arguments are difficult to track.”

35 U.S.C. § 285 allows courts to award reasonable attorney’s fees in exceptional cases. Although Amneal Pharmaceuticals LLC v. Almirall, LLC held that Section 285 does not apply to work done in actions before the U.S. Patent and Trademark Office (“PTO”), the Court here held that a district court may award fees incurred during proceedings before the PTAB under certain circumstances. The Court cited Am. Vehicular Sciences LLC v. Autoliv, Inc., which held that defendants in district court can seek fees incurred during IPR proceedings before the PTO in exceptional cases. The Court also cited PPG Indus., Inc. v. Celanese Polymer Specialities Co., Inc., which awarded “attorney fees incurred . . . during reissue proceedings, where [t]he parties and the district court clearly intended to replace the district court litigation with the reissue proceedings,” supporting Wargaming’s argument that the IPR proceedings were a substitute for stayed district court litigation.

Factors considered in determining whether a case is “exceptional” include frivolousness, unreasonable conduct, and claims that are made in bad faith or are exceptionally meritless. The Court, finding the case exceptional and awarding attorney’s fees, concluded its analysis of GAT’s conduct by saying:

“Plaintiff’s failure to investigate, continued misrepresentations, and shifting litigation positions collectively make this a case that stands out from others as to the manner in which it was litigated. . . . Had Plaintiff performed a reasonable investigation regarding service when it raised the issue before the PTAB, it would have learned that the service was deficient. Even after it realized service was deficient, it continued to make misstatements, i.e., that service was properly effected. Further, as noted, Plaintiff improperly presented new arguments in responsive briefs and at oral argument.”