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LevelUp’s Pursuit of Attorney’s Fees Goes Up to the Federal Circuit Level

By Laura Stafford on May 8, 2015
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mobile-payment-6In an interesting case before Judge Timothy S. Hillman in the District of Massachusetts, a dispute over whether attorney’s fees should be granted is moving up to the Federal Circuit. The case brings back before the Federal Circuit the question of the proper standard for granting attorney’s fees – a standard that has been in flux at the District Court level in the wake of last year’s Octane Fitness decision by the Supreme Court.

Boston-based technology startup LevelUp sought attorney’s fees for its costs in defending a lawsuit against individual plaintiff Jack Barron, as well as discovery in aid of that motion. The case has moved on a fast track: in July 2013, Mr. Barron filed suit against LevelUp for infringement of a patent claiming methods for communicating messages in order to allow a financial transaction to be performed at a transaction terminal.  By September 2013 – before discovery had even started – LevelUp filed a motion for summary judgment, claiming that its products lacked the “transaction terminal” that appeared in each claim of Mr. Barron’s patent. After summary judgment was granted in LevelUp’s favor last July, LevelUp filed its motion for attorney’s fees.  LevelUp claimed that Mr. Barron’s suit was objectively baseless because its products could not contain the “transaction terminal” required to infringe Mr. Barron’s patent. LevelUp further argued that Mr. Barron brought the suit solely for the purpose of extracting a nuisance settlement from LevelUp, focusing heavily on the enormous expense to technology companies of frivolous patent infringement lawsuits.

The Court found in Mr. Barron’s favor, noting that he had engaged in months of pretrial investigation prior to bringing suit, and that as this was the first suit he had filed, he was not seeking to merely extract a license from LevelUp.

The case highlights the muddy line separating weaker but viable lawsuits from those that are objectively unreasonable or baseless. Even though the case was settled on a motion for summary judgment filed before discovery had started, the Court found that the suit was not objectively baseless because it was not so far-fetched that no patent owner would consider pursuing it. As this case moves into the appeal stage, clarity from the Federal Circuit on how to evaluate whether a claim is objectively unreasonable or baseless could provide significant help to litigants faced with prosecuting or defending an attorney’s fees motion.

The case is Jack Barron v. SCVNGR d/b/a LevelUp, No. 13-40084-TSH, in the District of Massachusetts.

Photo of Laura Stafford Laura Stafford

As a Litigation partner, Laura Stafford focuses her practice on complex business disputes, with a particular emphasis on bankruptcy litigation. Recently, she has had a lead role in representing the Financial Oversight and Management Board for Puerto Rico in litigation involving the restructuring…

As a Litigation partner, Laura Stafford focuses her practice on complex business disputes, with a particular emphasis on bankruptcy litigation. Recently, she has had a lead role in representing the Financial Oversight and Management Board for Puerto Rico in litigation involving the restructuring of Puerto Rico’s finances. In that capacity, she has, among other things, managed the claims reconciliation process while litigating numerous other adversary proceedings and contested matters.

Laura has litigated a range of matters in the federal courts, including serving on the successful trial teams in MobileMedia Ideas v. Apple and ADREA v. Barnes & Noble, as well as before the International Trade Commission. She is experienced in all stages of the litigation process, including pre-suit due diligence, discovery, summary judgment and trial.

In addition, Laura maintains an active and diverse pro bono practice, with a focus on immigration law and gun control issues. She has secured permanent residency for numerous unaccompanied minors immigrating to the United States.  She has also filed numerous amicus briefs in federal and state court supporting the constitutionality of legislation.

Prior to joining Proskauer, Laura worked for the New York County District Attorney’s Office as a paralegal in the Frauds Bureau.

Read more about Laura StaffordEmail
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  • Posted in:
    Intellectual Property
  • Blog:
    New England IP Blog
  • Organization:
    Proskauer Rose LLP
  • Article: View Original Source

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