Following entry of default judgment of invalidity and non-infringement, Magistrate Judge Boal recommended denying defendant and counterclaim plaintiff National Lumber’s motion for attorney fees pursuant to 35 U.S.C. § 285. IPD initially sued Boise, National Lumber and others, and National Lumber counterclaimed seeking declaratory judgment of invalidity and non-infringement of patents owned by IPD and its owner, Glen Robell. Default was entered when IPD lost its counsel and could not secure a new attorney and Robell ceased participating in the litigation. National Lumber sought more than $130,000 in fees, claiming the case was exceptional. Judge Boal noted that, while default was clearly warranted, the actual merits of IPD’s patent claims were not actually tested such that she could say that they were so without merit as to make the case exceptional.
Judge Boal did, however, recommend an award of fees pursuant to National Lumber’s 93A counterclaim. She determined that IPD and Robell had violated that statute, which governs unfair business practices in Massachusetts. The statute provides for, among other things, an award of reasonable attorney’s fees and costs. She reduced the fee award by 25%, to account for work performed in relation to the patent claims and other state law claims, ultimately recommending an award of $102,768.75.
Judge Boal further found that the 93A violation, which constitutes a tort, can be asserted against Robell individually so long as he personally participated in the tort. Robell’s failure to defend himself, and the resulting default judgment, established his participation as alleged in the counterclaim, and he was thus liable personally.
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