The U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential decision Monday affirming a district court’s ruling that denied attorney fees and sanctions to Pure Hemp Collective, Inc. over a patent infringement suit brought against it by United Cannabis Corporation.
The patent at issue, U.S. Patent No. 9730911, covers “Cannabis Extracts and Methods of Preparing and Using Same.” United Cannabis sued Pure Hemp for infringement in July 2018, but, following United Cannabis’ bankruptcy proceedings, the parties stipulated to the dismissal of the patent case. United Cannabis’ infringement claims were dismissed with prejudice while Pure Hemp’s invalidity and inequitable conduct counterclaims were dismissed without prejudice.
In April 2021, Pure Hemp moved for attorney fees on the bases that 1) United Cannabis’ counsel committed inequitable conduct when she copied text from prior art into the specification of the ‘911 patent without disclosing it as prior art to the U.S. Patent and Trademark Office (USPTO) and 2) that United Cannabis’ litigation counsel, Cooley, took conflicting positions in its representation of United Cannabis and another client, GW Pharma. The district court denied the motions on the existing record, as Pure Hemp did not seek further proceedings on its motion. The district court in part said that Pure Hemp had failed to establish itself as the “prevailing party” in the litigation.
Harmless Error
In its discussion, the CAFC explained that the district court did in fact err in not finding that Pure Hemp was the prevailing party,
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