Opinions — Tuesday, September 8, 2026

In Jamil Asafi, as Trustee of 301 Patent Trust v. Western Digital Technologies, Inc., the Federal Circuit dismissed the appeal for failure to prosecute after appellant failed to file the brief required by Federal Circuit Rule 31(d) within the time permitted by the rules. No costs or other relief were addressed in the order.

The Federal Circuit affirmed the district court's determination that Viavi Solutions Inc. v. Platinum Optics Technology Inc. was an exceptional case warranting attorney's fees under 35 U.S.C. § 285. Viavi sued Platinum Optics for patent infringement based on allegations that Platinum supplied the "11246 Filter" or a substantially similar filter to a major company for devices sold in the United States, but Viavi's complaint relied on claim charts mapping only to a pre-litigation 11246 Filter that Viavi had already licensed in prior foreign litigation. After Platinum filed a declaration establishing it had not manufactured or sold the 11246 Filter since May 2020, Viavi continued litigating for over two years before seeking to amend its contentions to add a newly obtained filter, which the magistrate judge denied as untimely and prejudicial.

The court's analysis is notable for its application of the pre-suit diligence factor under Octane Fitness's totality-of-the-circumstances framework. While Viavi argued it satisfied Q-Pharma's requirement of a good-faith infringement analysis by comparing its patents to the 11246 Filter, the Federal Circuit held that the district court did not abuse its discretion in finding the investigation inadequate where Viavi sued without evidence that the 11246 Filter was actually being sold post-license, without possessing any accused device from the U.S. market, and while relying on supply-chain rumors and declining market share. The court further affirmed that Viavi's failure to dismiss claims targeting the 11246 Filter after receiving decisive evidence it was not at issue, combined with its attempt to maintain discovery into uncharted "substantially similar" filters, constituted objectively unreasonable litigation conduct that prolonged the case and justified fee-shifting from the point the declarative evidence was submitted.