Judge Joseph Irenas (Carmen Natale)
A federal appeals court has upheld a New Jersey judge’s dismissal of a patent infringement suit against travel website Kayak.com.
The U.S. Court of Appeals for the Federal Circuit in an opinion dated Sept. 7 let stand a decision by the late U.S. District Judge Joseph Irenas that Kayak’s quote-generating software did not infringe a patent held by plaintiff Source Search Technologies, or SST. The appeals court ruling also lets stand the finding that the case was “exceptional” and the award of $578,085 in legal fees to Kayak.
SST, based in Upper Saddle River, claimed in a 2011 complaint that its ’328 patent, titled “computerized quotation system and method,” was infringed by Kayak. SST said Kayak was infringing its patent for “a method and system that allows a central computer to filter requests for quotes, and to interface to various vendor computers to obtain and forward such quotes to potential buyers of goods and services,” according to the amended complaint filed in 2013.
Irenas dismissed the infringement claim in July 2015, finding that the concept behind the plaintiff’s quote-generating software was too abstract to be patent-eligible.
Later, U.S. District Judge Noel Hillman ruled that the case was “extraordinary” in March 2016 and awarded $578,085 in legal fees to Kayak and granted a fee application from Kayak in December 2016.
Hillman found the case exceptional under 35 U.S.C. §285 because SST changed positions in order to try to save the validity of its patent after Kayak moved for summary judgment on invalidity. The judge found SST’s conduct supported a declaration that the case was exceptional “in that this flip-flopping stands out from others with respect to the substantive strength of a party’s litigating position.” The court may award attorney fees to the prevailing party under such circumstances.
Kayak sought fees for four Boston-based attorneys at K&L Gates who worked on the case, although others were involved. Hillman approved hourly rates of $781 for John Cotter, $682 for Christopher Centurelli, $447 for James Culverwell and $422 for Andrea Reed. And those rates were reduced by percent for work performed after February 2015 based on a reduction that Kayak received from K&L Gates.
Earlier in the case, counsel for SST and Kayak had argued in a series of letters to Irenas over the applicability of recent rulings by other district courts that addressed the question of whether abstract technology could be patented.
SST’s attorney, Jeffrey Kaplan of Kaplan Breyer & Schwarz in Matawan, cited two cases in which courts held that abstract technology was not too abstract to be patent-eligible under 35 U.S.C. §101.
But Irenas said the cases cited by SST were distinguishable from the Kayak case because “the claims in those cases went further than the bare recitation of ‘software’ seen here.”
Irenas said the ’328 patent failed to detail how the predistributed software actually acquires quote information from vendor databases.
In the appeals court decision, Federal Circuit Judges Kimberly Moore, Raymond Chen and Todd Hughes affirmed the judgment below but did not issue an opinion.
SST brought a similar suit for infringement of the same patent against Lending Tree in 2004. The patent was ruled to be infringed but invalid as obvious. SST appealed to the Federal Circuit, which reversed, and the parties settled the case on remand.
Kaplan, the lawyer for SST, did not return a call about the case. Cotter, the K&L Gates lawyer who was lead counsel for Kayak, declined to comment.