IP Law Daily, PATENT—Fed. Cir.: Fee award affirmed in music playlist dispute, (Dec 1, 2025)

By Kevin M. Finson, J.D.

A fee award was affirmed because the patentee brought suit without conducting a pre-suit investigation when even a simple internet search would have uncovered that the accused product was available before the priority date of the asserted patent and because the patentee moved to amend a judgment based on newly discovered evidence without in fact possessing any new evidence to present.

Google was entitled to fees and costs awarded after dismissal of a claim, the U.S. Court of Appeals for the Federal Circuit has held. The opposing party had completely failed to conduct a pre-suit investigation and had made frivolous arguments (Escapex IP, LLC v. Google LLC, No. 24-1201 (Fed. Cir. Nov. 25, 2025)).

ExcapeX IP, LLC (EscapeX) brought suit against Google, LLC (Google) for infringement of U.S. Patent No. 9,009,113 (the ’113 patent), which was entitled “System and Method for Generating Artist-Specified Dynamic Albums.” Google disputed that EscapeX has not conducted an adequate pre-suit investigation because the accused product, YouTube Music, lacked the accused features. ExcapeX then amended the complaint to change the accused product to YouTube Video with Auto-Add, which Google pointed out had existed prior to the ’113 patent’s priority date. After a judge in a separate case found all claims of the ’113 patent invalid for being directed to unpatentable subject matter, EscapeX filed a joint stipulation of dismissal in which it incorrectly stated that both parties had agreed to bear their own costs. Google then filed a motion seeking attorneys’ fees, arguing that ExcapeX had advanced frivolous claims and unreasonably prolonged the litigation. The trial court granted Google $191,302.18 in fees and costs. EscapeX then moved to amend the judgment under Rule 59(e). The trial court found that EscapeX had “wholly failed to meet the Rule 59(e) standard for amending a judgment” and denied the motion. The court then awarded Google an additional $63,525.30 in attorneys’ fees and costs, making EscapeX and its attorneys jointly and severally liable for the fee award. EscapeX appealed.

Exceptional case. The court found that the trial court was within its rights to consider the lack of an adequate pre-suit investigation as part of the totality of the circumstances around determining if the case was exceptional for attorneys’ fee award purposes. The record clearly supported the trial court’s finding that a basic internet search would have revealed the accused product was available prior to the priority date of the ’113 patent. Likewise, the court properly considered EscapeX’s counsel’s failure to engage with Google’s counsel in communications about the claims brought in the case.

Amendment of judgment. The court found that the declarations of two employees of EscapeX, who had worked for EscapeX during the entire litigation, could not possibly amount to “newly discovered evidence” even though the declarations themselves were drafted after the entry of judgment. The evidence was always available to EscapeX and could have been prepared and presented to the trial court much earlier. Therefore, EscapeX failed to present any new evidence to support its motion under Rule 59(e) and that motion was frivolous.

The court affirmed the decision of the trial court.

The Case is No. 24-1201.

Judge: Stark, L.

Attorneys: William Peterson Ramey, III (Ramey LLP) for Escapex IP, LLC. Jonathan Irvin Tietz (Perkins Coie LLP) for Google LLC.

Companies: Escapex IP, LLC; Google LLC

Cases: Patent FedCirNews CaliforniaNews