The Eastern District of Texas’ Magistrate Judge Payne, on June 5, 2019, issued a decision in My Health, Inc. v. ALR Technologies, Inc. (available here), finding that 35 U.S.C. § 285 does not allow an award of attorney’s fees against a party’s counsel. I previously discussed an earlier case holding the same.
Interestingly, the defendants in My Health, after being awarded their attorney’s fees from the plaintiff My Health (and My Health failing to pay such fees), sought an order to show cause why My Health should not be held in contempt of court for failing to pay the fees. (The defendants apparently forgot that debtors’ prisons went out of style a long time ago.) Judge Payne rejected this request:
Defendants seek an order from this Court holding My Health in civil contempt for failing to pay the attorneys’ fees previously awarded to Defendants. However, contempt is not the appropriate mechanism for enforcing the § 285 Order. Any claim to attorneys’ fees must be processed in compliance with Federal Rule of Civil Procedure 54(d)(2)(B). IPXL Holdings, L.L.C. v. Amazon.com, Inc., 430 F.3d 1377, 1386 (Fed. Cir. 2005). A Rule 54(d) award of attorneys’ fees is considered a money judgment. Federal Rule of Civil Procedure 69 provides for post-judgment remedies. See 3 Kids, Inc. v. Am. Jewel, LLC, No. 3:18-MC-096-S (BH), 2019 WL 462781, at *2 (N.D. Tex. Jan. 15, 2019), report and recommendation adopted, No. 3:18-MC-096-S, 2019 WL 460325 (N.D. Tex. Feb. 6, 2019). Rule 69 provides that a “money judgment is enforced by a writ of execution, unless the court directs otherwise.” Fed. R. Civ. P. 69(a)(1).
Here, the attorneys’ fees award under § 285 is a money judgment. The Court will thus not hold My Health in civil contempt for failure to pay where such an award is enforceable through a writ of execution and other methods for enforcing money judgments. Defendants’ contempt motion (Dkt. No. 183) is therefore denied.