United States District Court, E.D. Michigan, Southern Division
MEMORANDUM AND ORDER DENYING DEFENDANT'S MOTION
TO REOPEN, LIFT STAY, AND AWARD ATTORNEY FEES (ECF NO.
COHN, UNITED STATES DISTRICT JUDGE
a patent case. In 2013,  plaintiff GII Acquisition, LLC (GII)
sued defendant Cybernet Systems, Inc. (Cybernet) claiming
infringement of U.S Patent No. 7, 403, 872 (the ‘872
patent) titled “Method and System for Inspecting
Manufactured Parts and Sorting Inspected Parts.” As
will be explained, the case was stayed pending proceedings in
the PTO. Following those proceedings, the Court entered an
order closing the case without prejudice. (ECF No. 85).
the Court is Cybernet's motion to reopen the case, lift
the stay, and award attorney fees. For the reasons that
follow, the motion is DENIED.
2013, GII sued Cybernet, asserting that Cybernet made, used,
sold and offered for sale an Automated Tactical Ammunition
Classification system (“ATAC system”) that
infringed the ‘872 patent. In its answer, Cybernet
denied infringement and asserted that it was manufacturing
and selling the accused ATAC system years before GII filed
the application for the ‘872 patent and therefore
denied infringement. Cybernet also asserted that the
‘872 patent was improperly issued by the PTO because
GII failed to cite to Cybernet's patent application for
its accused ATAC system when it originally applied to the PTO
for its ‘872 Patent.
the complaint was filed, the parties engaged in discovery
which included the filing of discovery related motions. The
motions were referred to the magistrate judge.
while the parties battled in discovery, and seven months
after the complaint was filed, Cybernet submitted an ex parte
request to the PTO for re-examination of the ‘872
Patent. Eventually, the PTO granted the request for
re-examination. At that point, approximately nine months
after the complaint was filed, the Court, on Cybernet's
motion, stayed the case pending reexamination. (ECF No. 77).
During re-examination, the PTO invalidated all of the
asserted claims. GII appealed within the PTO and to the
Federal Circuit, but eventually abandoned its appealed in the
Federal Circuit. Although not entirely clear, it appears the
parties settled the case as GII states it “chose to
pursue settlement rather than incur the costs and risks
associated with appeals.” (ECF No. 90 Page.ID.1996).
the stay was entered, the case was reassigned to the
undersigned. In 2014 and 2016, the Court held a couple of
status conferences with the parties. One of the conferences
in 2016 indicates it was a settlement conference. Almost two
years passed with neither party taking any action; the case
lingered on the Court's docket. Eventually, on July 10,
2018, the Court entered an order closing the case without
prejudice. The order provides in pertinent part:
Counsel have replied that there is no objection to the case
being dismissed as long as post judgment motions could be
submitted regarding attorney fees and costs.
(ECF No. 85 PageID.1814).
year later, Cybernet filed the instant motion to reopen the
case, lift the stay, and attorney fees. Cybernet says this is
an exceptional case and asks for an award of $250, 000.00 in
opposes Cybernet's fee request on several grounds,