Marshall Feature Recognition, LLC v. Wendy’s Int’l., Inc., No. 14 C 865, Slip Op. (N.D. Ill. Nov. 16, 16) (Coleman, J.).

Judge Coleman denied plaintiff Marshall Feature Recognition’s (“MFR”) Fed. R. Civ. P. 59 motion for new trial in this patent case involving QR codes.

As an initial matter, a motion for new trial was improper because there had not been a trial. The Court, therefore, treated the motion as a motion to reconsider the Court’s order awarding defendant Wendy its fees and the entry of judgment reflecting that award. After hearing, the Court denied the motion for at least the following reasons:

  • Despite issues with its lead counsel, MFR had notice of the fees hearing. At an early hearing at which MFR’s local (now lead) counsel was present, the Court informed the parties that it was awarding Wendy’s fees and asked the parties to meet and confer regarding the amount. The Court warned that if they could not agree, the parties were to file reports and attend an October 21, 2016 hearing, where the Court ultimately heard argument before awarding fees. The October 21 hearing was also on the docket. No one attended the October 21 hearing for MFR, despite having notice of it at the prior hearing. Having missed its hearing without excuse, MFR has no right to an additional hearing.
  • MFR had ample time to respond to Wendy’s fees motion. The Court set a briefing schedule and then the case was delayed significantly due to issues with MFR’s lead counsel. MFR, therefore, had months to file a response brief and chose not to do so.

The Court held the case exception for several reasons:

  1. MFR continued to advance arguments that the Court had foreclosed.
  2. MFR’s conduct before the Court and courts across the country “strongly suggests MFR’s goal in filing this action was settlement.”
  3. MFR failed to file final infringement contentions pursuant to the Local Patent Rules, failed to communicate with Wendy’s even after judicial warnings of dismissal for failure to prosecute, was uncooperative during discovery and refused to engage in meaningful settlement discussions.

In addition to finding the case exceptional and awarding fees, the Court noted that it had “never seen another case like [MFR’s].” The Court refused to shift the duty to pay fees to MFR’s counsel. Noting that MFR could pursue relief in other jurisdictions, the Court held that MFR was to pay the fees as MFR was the party who failed to attend hearings and failed to object to Wendy’s timely filed fee petition.