Abbott Laboratories, Inc. v. Curtis Laboratories, Inc., Curtis Laboratories, Inc. v. Abbott Laboratories, Inc.

Abbott Laboratories, Inc. (Abbott) filed a patent infringement action against Curtis Laboratories, Inc. (Curtis) in February, 1975. The patent in suit involved the use of a buffered solution in a chemical process for the detection of hepatitis in human blood, plasma, and serum. Both Abbott and Curtis were actively engaged in marketing hepatitis detection kits at the time, and both made use of the buffered solution. Approximately seven months after the suit’s filing, Curtis substituted a noninfringing water solution for the buffered solution allegedly patented by Abbott. Soon thereafter, Abbott moved to dismiss its Complaint and Curtis’ Counterclaim for patent invalidity on the basis that Curtis’ infringement had terminated and that past damages were de minimus. After extensive briefing and oral argument, the District Court dismissed Abbott’s Complaint without prejudice and dismissed Curtis’ Counterclaim for patent invalidity without leave to amend. The court further awarded Curtis attorney fees in the amount of $500.

Curtis now appeals the dismissal of its ■ Counterclaim and seeks additional attorney fees pursuant to 35 U.S.C. § 285 . After careful consideration of the arguments…