United States Court of Appeals
for the Federal Circuit
______________________
BLACKBIRD TECH LLC, DBA BLACKBIRD
TECHNOLOGIES,
Plaintiff-Appellant
v.
HEALTH IN MOTION LLC, DBA INSPIRE
FITNESS, LEISURE FITNESS EQUIPMENT LLC,
Defendants-Appellees
______________________
2018-2393
______________________
Appeal from the United States District Court for the
Central District of California in No. 2:17-cv-03488-R-GJS,
Senior Judge Manuel L. Real.
______________________
Decided: December 16, 2019
______________________
JEFFREY AHDOOT, Blackbird Tech LLC, Boston, MA, ar-
gued for plaintiff-appellant. Also represented by WENDY
VERLANDER; STAMATIOS STAMOULIS, Stamoulis &
Weinblatt LLC, Wilmington, DE.
WILLMORE F. HOLBROW, III, Buchalter, A Professional
Corporation, Los Angeles, CA, argued for all defendants-
appellees. Defendant-Appellee Health In Motion LLC also
represented by CHRISTINA LE TRINH, Irvine, CA.
______________________
2 BLACKBIRD TECH LLC v. HEALTH IN MOTION LLC
Before PROST, Chief Judge, WALLACH and HUGHES, Circuit
Judges.
WALLACH, Circuit Judge.
Appellant Blackbird Tech LLC (“Blackbird”) sued Ap-
pellees Health In Motion LLC (“HIM”) and Leisure Fitness
Equipment LLC (“Leisure”) (together, “Appellees”) in the
U.S. District Court for the District of Delaware, and later
transferred to the U.S. District Court for the Central Dis-
trict of California, for infringement of U.S. Patent
No. 6,705,976 (“the ’976 patent”) owned by Blackbird. Af-
ter more than nineteen months of litigation, Blackbird vol-
untarily dismissed its suit with prejudice and executed a
covenant not to sue, after which Appellees were granted
attorney fees and expenses in the amount of $363,243.80.
Blackbird Tech LLC v. Health In Motion LLC, No. 2:17-cv-
03488-R-GJS (C.D. Cal. Sept. 10, 2018) (Order) (J.A. 17–
20).
Blackbird appeals. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(1) (2012). We affirm.
BACKGROUND
In October 2016, Blackbird sued Appellees in the U.S.
District Court for the District of Delaware (“Delaware Dis-
trict Court”) for infringement of the ’976 patent. J.A. 418–
28 (Original Complaint). 1 The ’976 patent relates to “exer-
cise equipment,” ’976 patent col. 1 l. 11, and more
1 Blackbird is an entity owned and controlled en-
tirely by attorneys, see Oral Arg. at 3:53–4:25,
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=
2018-2393.mp3, whose business model consists of purchas-
ing patents and monetizing them “through litigation,”
J.A. 1258–59 (Declaration of Blackbird’s Vice President
and Head of Litigation).
BLACKBIRD TECH LLC v. HEALTH IN MOTION LLC 3
particularly to “[e]xercise equipment including a housing
having a structural surface defining an arcuate path” and
“multiple pairs of pulleys positioned along the arcuate
path, each pair of pulleys having passed between them a
cable the proximal end of which is located outside the
curved path, the distal end of the cable being coupled to a
source of resistance within the housing,”
id., Abstract.
In March 2017, Appellees filed a motion to transfer to
the U.S. District Court for the Central District of California
(“District Court”). J.A. 28. The Delaware District Court
granted Appellees’ motion to transfer in April 2017. Black-
bird Tech LLC v. TuffStuff Fitness, Int’l, Inc., No. 1:16-cv-
00733–GMS,
2017 WL 1536394, at *1 (D. Del. Apr. 27,
2017) (J.A. 536, 547); see
id. at *1 n.2 (explaining that
“HIM has incorporated by reference TuffStuff’s arguments
in its motion to transfer . . . , therefore the court’s memo-
randum and order will apply to both cases”).
In June 2017, Blackbird offered to settle its case
against Appellees for $80,000. J.A. 2069. Appellees de-
clined Blackbird’s offer, explaining that Blackbird’s “in-
fringement allegations lack[ed] merit” “[i]n view of the
substantial differences between what is claimed in the
[’]976 [p]atent and the accused device,” viz., HIM’s M1
Multi-Gym. J.A. 2070; see J.A. 1176, 1185–86 (User Man-
ual for the M1 Multi-Gym). 2 Appellees also explained that
they “believe[d] there [was] a strong likelihood” that Black-
bird would be ordered to pay Appellees’ attorney fees, and
countered with a settlement offer that included, inter alia,
Blackbird “mak[ing] a payment of $120,000” to Appellees.
2 HIM “designs, markets[,] and sells fitness equip-
ment,” including the M1 Multi-Gym, “throughout the
United States.” J.A. 561. Leisure “operates numerous re-
tail outlets, throughout the [United States], where it sells
various types of physical fitness equipment, including the
M1 [Multi-Gym].” J.A. 561.
4 BLACKBIRD TECH LLC v. HEALTH IN MOTION LLC
J.A. 2070. In October 2017, Blackbird made another set-
tlement offer, this time for $50,000. J.A. 2241; see
J.A. 1440 (“Blackbird’s counsel . . . made an oral offer to
settle the case if [Appellees] paid Blackbird $50,000.”).
Again, Appellees declined. J.A. 1140, 2241. In April 2018,
Blackbird offered to settle yet again, this time for $15,000.
J.A. 1440. Appellees once again declined, “maintain[ing]
their request that Blackbird pay a portion of [Appellees’]
expenses[.]” J.A. 1440. Later that same month, and again
the following month (May 2018), Blackbird offered “a
‘walk-away’ settlement whereby [Appellees] would receive
a license to the [’976] patent for zero dollars, and the case
would be dismissed.” J.A. 2239 (describing the April 2018
offer), 2539 (describing the May 2018 offer). Once again,
Appellees declined. J.A. 2239; see J.A. 2239–40 (Black-
bird’s Vice President and Head of Litigation stating that
“[Appellees], through counsel, have rejected all settlement
offers by Blackbird . . . , including the zero-dollar ‘walk-
away’ offer. . . . I understand the reasoning for this to be
that [Appellees] have a belief that they will ultimate[ly] be
awarded their legal fees after judgment in this matter”).
In May 2018, shortly before discovery was scheduled to
end, Appellees filed a motion for summary judgment.
J.A. 555–75 (Motion for Summary Judgement). Blackbird
opposed, J.A. 1215–45, but, after Appellees’ motion was
fully briefed, and without notifying Appellees in advance,
Blackbird filed a notice of voluntary dismissal with preju-
dice, J.A. 1338–39 (Notice of Voluntary Dismissal), exe-
cuted a covenant not to sue, J.A. 1334–35 (Covenant Not to
Sue), and filed a motion to dismiss for lack of subject mat-
ter jurisdiction, J.A. 1323–28 (Motion to Dismiss). 3 See
3 In its Motion to Dismiss, Blackbird argued that be-
cause it issued Appellees a “covenant not to sue on all
claims of [the ’976 patent],” “no case or controversy exists
BLACKBIRD TECH LLC v. HEALTH IN MOTION LLC 5
J.A. 1441 (Appellees’ lead counsel explaining that “Black-
bird’s counsel never mentioned that he intended to file a
covenant not to sue. . . . Blackbird surprisingly filed a No-
tice of Dismissal, Covenant Not to Sue[,] and Motion to Dis-
miss”); Oral Arg. at 20:19–20:38 (Appellees’ counsel stating
that Appellees “didn’t even get a call from Blackbird, [Ap-
pellees] just saw . . . on the [CM/]ECF [system] that [Black-
bird] had filed these documents dismissing the case”).
In June 2018, the District Court dismissed Blackbird’s
claims with prejudice and denied Blackbird’s Motion to
Dismiss, while authorizing Appellees to “seek to recover
their costs, expenses, and/or attorney[] fees.” J.A. 1383–
85. That same month, Appellees filed a motion for attorney
fees and expenses, J.A. 1386–87 (Motion for Attorney Fees
and Expenses), 1390–1417 (Memorandum in Support of
Motion for Attorney Fees and Expenses), requesting
$357,768.50 in attorney fees and $5,475.30 in expenses,
J.A. 1417. In September 2018, the District Court issued its
Order granting Appellees’ Motion for Attorney Fees and
Expenses for the total requested amount of $363,243.80.
J.A. 17–20.
DISCUSSION
I. Standard of Review and Legal Standard
By statute, a “court in exceptional cases may award
reasonable attorney fees to the prevailing party.” 35 U.S.C.
§ 285 (2012). “[A]n ‘exceptional’ case is simply one that
stands out from others with respect to the substantive
strength of a party’s litigating position (considering both
the governing law and the facts of the case) or the unrea-
sonable manner in which the case was litigated.” Octane
Fitness, LLC v. ICON Health & Fitness, Inc.,
572 U.S. 545,
554 (2014). “[T]here is no precise rule or formula for
between the parties,” and thus “the case has been mooted,
and should be dismissed.” J.A. 1324; see J.A. 1325–27.
6 BLACKBIRD TECH LLC v. HEALTH IN MOTION LLC
making these determinations”; instead, district courts
“may determine whether a case is ‘exceptional’ in the case-
by-case exercise of their discretion, considering the totality
of the circumstances.”
Id. (internal quotation marks and
citation omitted).
On appeal, we “review all aspects of a district court’s
§ 285 determination for abuse of discretion.” Highmark
Inc. v. Allcare Health Mgmt. Sys., Inc.,
572 U.S. 559, 561
(2014). A district court abuses its discretion when it
“‘base[s] its ruling on an erroneous view of the law or on a
clearly erroneous assessment of the evidence.’” Rothschild
Connected Devices Innovations, LLC v. Guardian Prot.
Servs., Inc.,
858 F.3d 1383, 1387 (Fed. Cir. 2017) (quoting
Highmark, 572 U.S. at 563 n.2). “A factual finding is
clearly erroneous if, despite some supporting evidence, we
are left with the definite and firm conviction that a mistake
has been made.”
Id. (internal quotation marks and citation
omitted). “We apply Federal Circuit case[]law to the § 285
analysis, as it is unique to patent law.” Digeo, Inc. v. Au-
dible, Inc.,
505 F.3d 1362, 1366 (Fed. Cir. 2007) (citation
omitted).
II. The District Court Did Not Abuse Its Discretion in
Concluding that This Case Is “Exceptional” Under
35 U.S.C. § 285
Considering the “totality of the circumstances,” the
District Court found that Blackbird’s case against Appel-
lees is “exceptional within the meaning of [§] 285 and Oc-
tane Fitness.” J.A. 18. Specifically, the District Court
determined that Blackbird’s case against Appellees is “ex-
ceptional” because it “stand[s] out from . . . others with re-
spect to” both “the substantive strength of [Blackbird’s]
litigation position” and “the unreasonable manner in which
the case [was] litigated” by Blackbird. J.A. 17–18. The
District Court also found that “granting a fee award [was]
warranted” in this case “to deter future abusive litigation.”
J.A. 19. Finally, the District Court concluded that
BLACKBIRD TECH LLC v. HEALTH IN MOTION LLC 7
Appellees’ requested award of $363,243.80 was reasonable
considering each attorney’s “comparable skill, experience,
and reputation.” J.A. 19 (citing Blum v. Stenson,
465 U.S.
886, 888 (1984)). We review each of the District Court’s
determinations in turn.
A. The District Court Did Not Abuse Its Discretion in
Determining that This Case “Stands Out” with Respect to
the Lack of Substantive Strength in Blackbird’s Litigation
Position
The District Court found that Blackbird’s litigation po-
sition was “meritless” and “frivolous.” J.A. 18–19. Specifi-
cally, the District Court determined that “[w]hen
challenged on the merits, [Blackbird] raised flawed claim
construction and infringement contentions,” and ulti-
mately “did not prevail on the merits . . . because [Black-
bird] dismissed its claims with prejudice, and submitted a
covenant not to sue on the eve of trial.” J.A. 18. Blackbird
argues, however, that its “claim construction and infringe-
ment positions were eminently reasonable, and likely cor-
rect.” Appellant’s Br. 19; see
id. at 19–29. We disagree
with Blackbird.
Independent claim 1 of the ’976 patent requires a
“housing” that includes a “structural surface defining a
prescribed concave arcuate contour” that: (1) delimits an
inside, i.e., “within the housing,” and an “outside” of the
“housing,” ’976 patent col. 16 ll. 45–52; and (2) includes “at
least three cable exit points . . . each . . . having [a cable]
passed therethrough,” i.e., from “within the housing” to
“outside” the “housing,”
id. col. 16 ll. 43–45. 4 Additionally,
independent claim 1 requires that a “common source of
4 Blackbird alleged, in its Original and Amended
Complaints, that HIM infringed “at least [independent]
claim 1 of the ’976 patent.” J.A. 425, 520; see J.A. 426–27,
521–23, 534.
8 BLACKBIRD TECH LLC v. HEALTH IN MOTION LLC
resistance” be provided “within the housing.”
Id. col. 16
ll. 50–51. Before the District Court, Blackbird proposed to
construe the term “housing” as a “part designed to shelter,
cover, contain, or support a component.” J.A. 1231. Even
accepting Blackbird’s proposed construction, the accused
device does not include a “housing” that meets the require-
ments of independent claim 1. For example, to the extent
the alleged “housing” of the M1 Multi-Gym includes a “con-
cave[,] arcuate” “structural surface,” the cables of the ac-
cused device are not “passed therethrough,” i.e., from
“within the housing” to “outside” the “housing,” at even a
single “exit point.” Compare ’976 patent col. 16 ll. 41–52,
with J.A. 422, 517, 1176, 1185–86. 5 Rather, the cables of
the M1 Multi-Gym are arranged outside of the alleged
“housing,” passing through a series of pulleys and flanges
provided on the outside surfaces of the M1’s tubular frame
members. See J.A. 422–25, 517–20, 1176, 1185–86. More-
over, a “common source of resistance” is not provided
“within” the alleged “housing” as required by independent
claim 1. Instead, the weights of the M1 Multi-Gym are
housed within a separate structural component. See
J.A. 422, 517, 1176. 6
5 Before the District Court, Blackbird argued that
the “housing” of the M1 Multi-Gym “consists of a ‘heavy-
duty round tubular steel’ frame,” that includes: (1) “up-
right supports”; (2) a “center upright brace”; and (3) a
“main upright.” J.A. 1240; see J.A. 1176–86 (depicting the
M1 Multi-Gym).
6 Blackbird contends that the District Court’s deci-
sion should be vacated, because the “District Court never
construed any claim element of the asserted patent.” Ap-
pellant’s Br. 15. In light of the material differences be-
tween the claims of the ’976 patent and the accused device,
even accepting Blackbird’s proposed constructions, “[c]laim
construction was unnecessary before finding
BLACKBIRD TECH LLC v. HEALTH IN MOTION LLC 9
Blackbird’s counterarguments are unpersuasive.
First, Blackbird argues that “the record compels a reversal
as a matter of law because . . . the District Court did not
find Blackbird’s arguments objectively baseless (merely
‘flawed’), and that is insufficient to support an award of
fees[.]” Appellant’s Br. 9. However, the District Court’s
finding that Blackbird’s “claim construction and infringe-
ment contentions” were “flawed,” is only a single consider-
ation among the totality of circumstances considered by the
court in concluding that Blackbird’s litigation position
lacked substantive strength. J.A. 18; see J.A. 18–19; see
also Octane
Fitness, 572 U.S. at 554–55 (explaining that
“there is no precise rule or formula” for determining
whether a case “stands out from others with respect to the
substantive strength of a party’s litigating position”; in-
stead, district courts may make this determination “in the
case-by-case exercise of their discretion, considering the to-
tality of the circumstances” (internal quotation marks and
brackets omitted)).
Second, Blackbird argues that “[t]here is simply no ba-
sis for finding that Blackbird should have known its litiga-
tion position was purportedly weak,” Appellant’s Br. 19, as
“neither [Appellees] nor the District Court put Blackbird
on adequate notice of the purported weakness of its posi-
tion to support an award of fees,”
id. at 9. The District
Court was not obliged to advise Blackbird of the weak-
nesses in its litigation position, and further, while a “lack
of . . . early notice . . . can support a denial of attorney[]
fees,” “we have not held that such notice is rigidly re-
quired.” Thermolife Int’l LLC v. GNC Corp.,
922 F.3d 1347,
1358 (Fed. Cir. 2019). Moreover, the exercise of even a
modicum of due diligence by Blackbird, as part of a pre-suit
noninfringement in this case[.]” Lumen View Tech. LLC v.
Findthebest.com, Inc.,
811 F.3d 479, 483 (Fed. Cir. 2016);
see J.A. 18 (finding that the “[’976] patent isn’t infringed”).
10 BLACKBIRD TECH LLC v. HEALTH IN MOTION LLC
investigation, would have revealed the weaknesses in its
litigation position. See Bayer CropScience AG v. Dow Agro-
Sciences LLC,
851 F.3d 1302, 1307 (Fed. Cir. 2017) (“We
cannot say that the district court erred in reasoning that
had [the plaintiff] conducted a more searching pre-suit in-
vestigation . . . it would have not filed suit. Nor did the dis-
trict court err in treating pre-suit diligence as a factor in
the totality-of-the-circumstance approach[.]”). It is also un-
clear what effect, if any, notice would have had on Black-
bird’s conduct, as Blackbird waited until the “eve of trial”
to dismiss its suit, J.A. 18; see J.A. 33, 35–36, despite being
aware of Appellees’ non-infringement contentions months
before, see Appellant’s Br. 5.
At a minimum, Blackbird was aware of Appellees’ in-
tention to seek attorney fees and expenses as early as De-
cember 2016, when, in answering Blackbird’s Original
Complaint, Appellees requested attorney fees and ex-
penses. J.A. 510. While this request may not have pro-
vided the “focused” and “supported” notice that we have
looked for in other cases, Stone Basket Innovations, LLC v.
Cook Med. LLC,
892 F.3d 1175, 1181 (Fed. Cir. 2018), it
undermines Blackbird’s attempt to blame others, including
the District Court, for it being purportedly unaware of the
weaknesses in its litigation position. Accordingly, the Dis-
trict Court did not abuse its discretion in determining that
this case “stands out” with respect to the lack of substan-
tive strength in Blackbird’s litigation position.
B. The District Court Did Not Abuse Its Discretion in
Determining that This Case “Stands Out” with Respect to
the Manner in Which Blackbird Litigated
The District Court did not limit its findings to the sub-
stantive strength of Blackbird’s litigation position, and fur-
ther determined that Blackbird’s case against Appellees
was “exceptional” because Blackbird “litigated . . . in an
unreasonable manner.” J.A. 18. The District Court made
multiple findings to support this determination, J.A. 18,
BLACKBIRD TECH LLC v. HEALTH IN MOTION LLC 11
each of which is supported by the record. First, the District
Court found that Blackbird “made multiple settlement de-
mands that were far less than the anticipated cost of de-
fense,” i.e., nuisance value settlement offers. J.A. 18; see,
e.g., Eon-Net LP v. Flagstar Bancorp,
653 F.3d 1314, 1327
(Fed. Cir. 2011) (finding that the district court did not err
in determining that the patentee had “acted in bad faith by
exploiting the high cost to defend complex litigation to ex-
tract a nuisance value settlement”). By its own admission,
Blackbird made a series of decreasing settlement offers, see
Appellant’s Br. 5–7; see also J.A. 1440, 2069, 2239–41,
2539, each of which was significantly less than the cost of
litigation, see J.A. 1417 (Appellees’ litigation costs totaled
at least $363,243.80).
Second, the District Court found that Blackbird unrea-
sonably “delayed in producing documents, withheld many
documents until after [Appellees] took [Blackbird’s] depo-
sition[,] and completely failed to produce other responsive
documents.” J.A. 18. Again, the record supports the Dis-
trict Court’s findings; indeed, the record shows numerous,
unexcused delays by Blackbird in producing documents,
see, e.g., J.A. 2084, as well as Blackbird’s attempts to with-
hold responsive documents entirely, without notice or ex-
cuse, until Appellees learned of the documents during
depositions, see J.A. 1440–41; Oral Arg. at 3:54–6:03
(Blackbird admitting that it “had the documents in-house”
yet failed to produce them), 24:13–24:50 (Blackbird admit-
ting “[t]hat [it] is true” that “documents identified in th[e]
deposition” have never been produced). 7 While Blackbird
subsequently implied that some of these documents might
be privileged, see J.A. 2230, Blackbird has failed to identify
7 As Appellees aptly point out, “Blackbird is an all-
in-one affair, in which employee-attorneys possessed the
documents, which were not . . . produced prior to the depo-
sitions[.]” Appellees’ Br. 35; see Oral Arg. at 3:53–4:25.
12 BLACKBIRD TECH LLC v. HEALTH IN MOTION LLC
in the record any such assertion of privilege prior to the
depositions.
Finally, the District Court determined that Blackbird
had unreasonably “filed a notice of dismissal, covenant not
to sue, and motion to dismiss without first notifying [Ap-
pellees’] counsel, on the same day pretrial submissions
were due and shortly before [Appellees’] motion for sum-
mary judgment was to be decided.” J.A. 18. The record
supports these findings. See J.A. 33, 35–36, 1323–28,
1334–35, 1338–39, 1441. Accordingly, the District Court
did not abuse its discretion in determining that this case
stands out with respect to the manner in which Blackbird
litigated.
C. The District Court Did Not Abuse Its Discretion by
Considering the Need to Deter Future Abusive Litigation
In addition to its findings as to the substantive
strength of Blackbird’s litigation position and conduct dur-
ing litigation, the District Court found that “granting a fee
award [was] warranted” in this case “to deter future abu-
sive litigation.” J.A. 19; see J.A. 19 (explaining that Black-
bird “has filed over one hundred patent infringement
lawsuits, and none have been decided, on the merits, in fa-
vor of [Blackbird]”). 8 Doing so was “within the scope of [the
8 As of August 2018, Blackbird had filed “over 110”
lawsuits since its inception in 2014. J.A. 1439 (citing
J.A. 1961–64); see J.A. 2238 (Blackbird acknowledging that
as of July 16, 2018, “Blackbird . . . ha[d] filed over 100 in-
dividual lawsuits since its inception, asserting over 20 dif-
ferent patents”). Blackbird admits that the vast majority
of these lawsuits were settled before a determination on
the merits could be made, see Appellant’s Reply Br. 5, and
acknowledges that not a single of its lawsuits “ha[s]
reached a full, final decision on the merits,” Oral Arg.
at 3:26–3:53.
BLACKBIRD TECH LLC v. HEALTH IN MOTION LLC 13
District Court’s] discretion in finding this case to be excep-
tional based on the weakness of [Blackbird’s infringement
contentions] and the need to deter similarly weak argu-
ments in the future.” Inventor Holdings, LLC v. Bed
Bath & Beyond, Inc.,
876 F.3d 1372, 1377–78 (Fed.
Cir. 2017). The District Court therefore did not abuse its
discretion by considering the need to deter future abusive
litigation. Accordingly, the District Court did not abuse its
discretion in concluding that Blackbird’s case against Ap-
pellees is “exceptional” within the meaning of 35 U.S.C.
§ 285. 9
III. The District Court Did Not Abuse Its Discretion in
Determining that Appellees Are Entitled to $363,243.80
in Attorney Fees and Expenses
The District Court concluded that Appellees’ requested
award of $363,243.80 was reasonable considering each at-
torney’s “comparable skill, experience, and reputation.”
J.A. 19 (citing
Blum, 465 U.S. at 888). Blackbird contends,
however, that “[e]ven if some award of fees [is] permissi-
ble,” Appellant’s Br. 9, “the District Court erred in award-
ing fees for the full amount of the litigation, in two
respects,”
id. at 38: (1) “by failing to consider the reasona-
bleness of the hours worked,”
id. at 39; and (2) “by award-
ing fees for the entirety of the litigation rather than
9 Blackbird challenges the sufficiency of the District
Court’s findings and reasoning underlying its determina-
tion that this case is “exceptional,” see Appellant’s Br. 14–
19, arguing that remand is necessary because “the District
Court did not supply the facts and reasoning it relied
upon,”
id. at 16. As our review of the District Court’s deci-
sion makes clear, the District Court “provide[d] a basis for
meaningful appellate review,” by setting forth factual find-
ings and “the reasoning underlying its decision.” Superior
Fireplace Co. v. Majestic Prods. Co.,
270 F.3d 1358, 1377
(Fed. Cir. 2001).
14 BLACKBIRD TECH LLC v. HEALTH IN MOTION LLC
relating it to the purported misconduct,”
id. at 40. We dis-
agree with Blackbird.
The District Court’s Order demonstrates its considera-
tion of the record, including Appellees’ “detailed break-
down of the tasks performed by each lawyer, the [billing]
rate of each lawyer, and the time spent by each lawyer”
working on this case. J.A. 19 (emphasis added); see
J.A. 19–20; see also Lumen
View, 811 F.3d at 483 (“In cal-
culating an attorney fee award, a district court usually ap-
plies the lodestar method, which provides a presumptively
reasonable fee amount, by multiplying a reasonable hourly
rate by the reasonable number of hours required to litigate
a comparable case.” (internal citations omitted)). Appellees
requested, in total, fees corresponding to just over 650
hours of work, J.A. 1413, an amount that the District Court
did not abuse its discretion in awarding, especially consid-
ering, as the record shows, that this case was the subject of
extensive motions practice and trial preparation, includ-
ing, inter alia: a motion to transfer that was fully briefed
and granted in Appellees’ favor, J.A. 28–29, 536, 547; a mo-
tion for summary judgment that was fully briefed, J.A. 34–
35, 555–75; a motion to dismiss that was filed, J.A. 35,
1321–28; pre-trial submissions that were prepared for fil-
ing, J.A. 36; and considerable discovery that was com-
pleted, including bi-coastal depositions, J.A. 1966, 1976,
1985, 1987, 2003–07, 2489, 2499–2509. 10
10 Blackbird argues also that the District Court erred
in awarding Appellees attorney fees corresponding to forty
hours that “were an estimate of future services to be ren-
dered briefing a reply in the motion for fees and prepara-
tion for and attendance at a hearing the [District] Court
never held.” Appellant’s Br. 39 (emphasis omitted). Appel-
lees’ counsel clarified during oral argument, however, that
they “actually . . . exceeded the forty hours.” Oral Arg.
at 17:05–17:27.
BLACKBIRD TECH LLC v. HEALTH IN MOTION LLC 15
Blackbird’s contention that “[g]iven the amount at
stake, the District Court should have determined whether
it was reasonable to expend so many hours on such a small
claim” is misplaced. Appellant’s Br. 39. Indeed, 650 hours,
for this litigation, is a far cry from the “countless hours” we
have cautioned against. Bywaters v. United States,
670
F.3d 1221, 1231 (Fed. Cir. 2012) (“Where only a small
amount is at stake, it certainly would not be reasonable to
expend countless hours on such a small claim[.]”). To hold
otherwise would, in effect, cause Appellees to make the un-
tenable choice between: (1) submitting to Blackbird’s set-
tlement demands—small as they may be; or (2) risking
non-reimbursement of attorney fees accrued in defending
themselves against Blackbird’s unmeritorious claims.
Moreover, the record supports the conclusion that Black-
bird’s misconduct “so severely affected every stage of the
litigation that a full award of attorney fees was proper
here.” Monolithic Power Sys., Inc. v. O2 Micro Int’l Ltd.,
726 F.3d 1359, 1369 (Fed. Cir. 2013). As the District Court
found, “from the very early stages of this case until the at-
torney[] fees stage, there has been exceptional conduct by
[Blackbird].” J.A. 18–19. Accordingly, the District Court
did not abuse its discretion in awarding Appellees the full
requested amount of $363,243.80.
CONCLUSION
We have considered Blackbird’s remaining arguments
and find them unpersuasive. Accordingly, the Order of the
U.S. District Court for the Central District of California is
AFFIRMED
