Google plays cat and mouse with iLOR

While, these days, most web-articles referring to Google talk about Android or open source video codecs, an interesting case was settled at the Court of Appeals for the Federal Circuit (CAFC): iLOR v. Google.

The background: iLOR is the assignee of the 7206839 “Method for adding a user selectable function to a hyperlink” and sued Google, in the District Court for the Eastern District of Kentucky, for infringement on claim 26, with Google Notebook. The District Court granted summary judgment on non-infringement because Google’s method required a right-click action by the user, which was not taught in claim 26. It also dismissed the case with prejudice. Then the case went on appeal to the CAFC, which affirmed the District Court’s finding. As a result, Google moved to recover its attorney’s fees and expenses under 35 U.S.C. 285. The District Court granted this motion and in so ruling, it found that iLOR acted in subjective bad faith and the case was “not close” on the merits.  Then iLOR appealed this decision to the CAFC and on January 11 2011 the decision came out.

Basically, the three judge panel (Rader, Linn, Dyk) concluded that the District Court committed clear error in holding the case exceptional under 35 U.S.C. 285 and no attorney’s fees will be paid to Google.

Now there’s your cat and mouse game in the US patent system. First iLOR sued and got knocked down, then iLOR appealed and again were proved wrong, then Google asked for their attorneys’ fees and the motion was granted, then iLOR appealed this last decision and the CAFC decided no attorney’s fees for Google.