Khet (Innovention Toys) v. Laser Battle (MGA) — apparently exceptional game; exceptional case

Patent litigators are very interested in 35 U.S.C. § 285 Exceptional Cases. A judicial finding of an exceptional case allows a party to recover attorneys’ fees. This week, a magistrate judge recommended that Innovention Toys be awarded $1,804,037 in attorneys’ fees and $219,552 in costs against MGA for willful infringement of the game Khet 2.0. In 2012, a Louisiana federal jury awarded $1.6 million in damages.
According to the Federal Circuit, “[a]n award of attorneys fees is permissible ‘when there has been some material inappropriate conduct related to the matter in litigation, such as willful infringement, fraud or inequitable conduct in procuring the patent, misconduct during litigation, vexatious or unjustified litigation, conduct that violates Fed. R. Civ. P. 11, or like infractions.’ ” iLOR, LLC v. Google Inc., 631 F.3d 1372, 1376–77 (Fed. Cir. 2011).
The court found that Innovention Toys proved with clear and convincing evidence that MGA’s infringement was willful and deferred to its magistrate to determine the amount of attorneys’ fees and costs due Innovention Toys.
Khet 2.0, a light-reflecting board game, was invented by a former Tulane professor, Dr. Michael Larson, and Luke Hooper and Del Segura, two of Larson’s former students, in 2003–2004. After delays due to Katrina, Innovention started selling the game in October 2005, garnering wide industry acclaim.
On December 1, 2005, an MGA (maker of popular Bratz dolls) employee purchased two Innovention Toys games and sent them to MGA’s headquarters. Employee emails were exchanged regarding the game’s box that was marked “patent pending” and asking which part of the game was patented. During trial, no reply email surfaced—however, an MGA employee said that obviously MGA decided to go ahead and proceed with its similar game, Laser Battle. In the fall of 2006, MGA began distributing Laser Battle through Walmart and Toys R Us. Innovention Toys instituted this lawsuit in October 2007. The patent at issue is: Light-reflecting board game, U.S. Patent No. 7,264,242.
Case: Innovention Toys, LLC v. MGA Entertainment, Inc., No. 2-07-cv-06510 (LAED).