Infringement Lawyers may be on the hook for millions in attorney fees.

Saw an article yesterday by Patricia Manson in the Chicago Daily Law Bulletin that might keep patent infringement lawyers up at night.

In 2007 Inventor Daniel Henderson made some statements to the US Patent and Trademark Office[PTO] concerning certain wireless technology. Based upon those statements Raymond Niro, Paul K. Vickrey, David J. Mahalek and Paul C. Gibbbons[the lawyers] filed patent infringement lawsuits on behalf of a company called Intellect Wireless. They sued HTC Corp. and HTC America Inc.

In subsequent litigation however, Judge William T. Hart determined that some of Henderson’s statements to the PTO in 2007 were false. And, importantly, he concluded that the lawyers had “critical knowledge” that Henderson had made false statements to the PTO – but continued to push the lawsuits. Hart went on to note that attorney fee awards under the U.S. Patent act are only appropriate in exceptional cases. And, Hart concluded, these facts, as he saw them, were exceptional.

Hart ordered the lawyers for both parties to sit down and determine the amount of attorney fees that should be awarded to the HTC entities. Now those would be interesting meetings to attend.

And another odd twist – initially, Intellect initially opposed that fees award. But later conceded that fees were appropriate. Wow. A party conceding fees against it are appropriate. You don’t see that everyday.

The lawyers assert they were never aware of Henderson’s false statements and made no misrepresentations in the litigation. The matter is up again before Hart on January 22, 2015. My bet is that there is no way on earth that three groups of lawyers[the lawyers named above; the lawyers for Intellect and the lawyers for the HTC entities] have reached a consensus on fees – especially when the fees may be in the millions and at least one set of lawyer disputes that fees are even appropriate. This will be interesting – and will likely involve an appeal.