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GoPro Dodges New Trial, and Denied Attorneys Fees By Delaware Federal Judge – 360Rize – Realty Inside Zero Edges

GoPro Dodges New Trial, and Denied Attorneys Fees By Delaware Federal Judge

After struggling with this issue for more than 9.5 years, having Big Tech duplicate your patent can make you feel as if having a patent was pointless in the first place.   So your best bet is don’t even get a patent, its worthless and should be burned!

It is important to note that ONLY under patent law Section 285, the victorious party in a trial can file for attorney fees, even after defeating the opposition. This law recently came into focus in the case where GoPro instigated a legal battle over a decade ago, suing 360Heros for its trademarked name, and subsequently attempting to acquire its patent without cost.  But they didn’t get it for FREE after millions of dollars in legal fees in the case of 360Heros vs. GoPro, the judge found GoPro’s actions questionable at best.

GoPro managed to profit millions from 360Heros’ hard work, but instead of settling—an action that would have been a logical business decision, saving millions in legal costs—they opted to spend well over $10 million defending the patent case, according to legal experts.

This financial choice was one that even GoPro’s investors if understood would have questioned GoPro’s leadership ability.   No wonder the company’s stock prices plummeted from a high of $98 per share to a mere $3.50. Such a downfall highlights serious questions about the intelligence of the company’s leadership and management and reveals a seeming lack of innovative spirit.  For GoPro, capitalizing on others’ efforts seemed an easier path, a strategy that was glaringly apparent during the trial and questions why even have a patent in the first place!

With a legal team of 14 lawyers and aides, years of preparation, and a readiness to push ethical boundaries, GoPro secured their desired outcome by manipulating the truth in their favor, and then wanted its attorney fees paid on a fight they started is astounding!  This case serves as a stark reminder that proper preparation is essential. Without it, even the most skilled legal minds may stumble in safeguarding their client’s interests, but thats only if you have a skilled lawyer that even nows how to prepare ahead of time!

(August 7, 2023, 12:03 PM EDT) — WILMINGTON, Del. — A jury verdict that the GoPro “Omni” product does not infringe a camera rig patent will stand, but the action camera maker will not be awarded attorney fees it incurred in defending the allegations, a federal judge in Delaware has ruled.


(360Heros Inc. v. GoPro Inc., No. 17-1302, D. Del., 2023 U.S. Dist. LEXIS 134902)

(Opinion available.  Document #16-230821-014Z.)

According to the Aug. 3 ruling by U.S. Judge Matthew F. Kennelly of the District of Delaware, the patent infringement claims by plaintiff 360Heros Inc., which originally involved three GoPro products, do not qualify as exceptional under Section 285 of the Patent Act, 35 U.S.C. § 285.

California Case

At issue in the dispute is 360Heros’ U.S. patent No. 9,152,019, which names 360Heros CEO Michael Kintner as inventor.  Titled “360 Degree Camera Mount and Related Photographic and Video System,” the patent recites “a camera holding assembly that is configured to hold a plurality of cameras in a predetermined orientation includes a support having a plurality of receptacles.” 

360Heros filed a suit in April 2016 in the U.S. District Court for the Northern District of California asserting that GoPro’s Abyss and Odyssey rigs infringed the patent.  After a bid by 360Heros for leave to amend to add the Omni rig as an infringing product was denied, 360Heros filed the instant lawsuit in the District of Delaware.

“GoPro moved for summary judgment in the California suit, contending that 360Heros lacked standing to assert the ‘019 patent or, in the alternative, that it did not infringe the patent. 360Heros contended that it had standing and that additional discovery was necessary to resolve the question of infringement. In November 2017, the California court granted GoPro’s motion for summary judgment for lack of standing,” Judge Kennelly explained.

Products Added

360Heros responded by adding the Abyss and Odyssey products to the Delaware litigation, but they were later removed after GoPro won partial summary judgment.  After a motion by GoPro to transfer the Delaware action to California was denied, at trial in April 2023, jurors were presented with only 360Heros’ allegations as they relate to the Omni rig. 

The jury sided with GoPro, deeming the ‘019 patent noninfringed.  Additionally, the jury said the ‘019 patent is invalid in view of the “Xperia,” a prior art 360-degree camera rig invented by Joergen Geerds. 

The plaintiff responded by seeking a new trial, asserting that GoPro was wrongly allowed to suggest to the jury that Kintner changed the publication date of a third-party submission to the U.S. Patent and Trademark Office by Geerds.  GoPro, meanwhile, moved for an award of fees under Section 285.  In his ruling, Judge Kennelly denied both motions.

Alleged Misrepresentations

Turning first to 360Heros’ motion, which was filed under seal, Judge Kennelly noted that “GoPro stated in its opening statement that ‘the evidence will show’ that ‘the patent examiner changed that [publication] date to March 3rd, 2013,’” not Kintner.  “Similarly,” the judge continued, “the portions of the closing argument that 360Heros points to do not imply that Kintner changed the date himself, but rather only that ‘the date was changed.’”

“360Heros does not contest that the June 21, 2012 date was in fact changed at some point to March 3, 2013.  Thus, 360Heros has not shown that GoPro’s closing argument contained any misrepresentations,” the judge said.

The other instance of alleged misconduct pointed to by 360Heros — when Geerds was asked whether he recalled “that counsel tried to imply that the change might have come from somebody other than Mr. Kintner?” — was indeed improper, Judge Kennelly said.  However, the judge explained, an objection by 360Heros was sustained and jurors were instructed to disregard the exchange.

“360Heros has not shown that it is reasonably probable that this one improper question was prejudicial.  360Heros also has not even attempted to argue that this question prevented it from fully and fairly presenting its case as required for relief under” of the Federal Rule of Civil Procedure 60(b)(3), Fed. R. Civ. P. 60(b)(3), Judge Kennelly concluded.

‘Substantive Strength’

The judge then addressed GoPro’s request for attorney fees, which the defendant premised on four grounds — inequitable conduct by the plaintiff, concealment of the defect in standing in the California case, forum shopping by 360Heros and weak theories of infringement and damages.  According to Judge Kennelly, the defendant failed to prove the intent element of inequitable conduct by clear evidence, and “the California court would . . . be in a much better position to evaluate whether 360Heros’s conduct was ‘deceptive’ and ‘wasteful’ as GoPro contends.”

Moreover, the question of forum shopping was already addressed when GoPro’s motion to transfer the Delaware case to California was denied, and “360Heros’s patent infringement theories were not so weak as to make this case exceptional,” Judge Kennelly ruled.

“It suffices to state that 360Heros’s literal infringement theory for the Abyss rig, when considered as part of the totality of the circumstances, does not make the substantive strength of 360Heros’s litigating position stand out among other cases.  Indeed, some of 360Heros’s infringement theories proceeded to trial,” the judge added.


360Heros is represented by Donald H. Mahoney III and William P. Ramey III of Stamatios Stamoulis, Stamoulis & Weinblatt LLC in Wilmington.

GoPro is represented by Philip A. Rovner, Andrew N. Saul, Byron R. Chin, Dario A. Machleidt and Mehrnaz Boroumand Smith of Potter Anderson & Corroon LLP in Wilmington.

(Additional documents available:  GoPro opposition to 360Heros motion for new trial.  Document #16-230821-015B.  360Heros reply.  Document #16-230821-016B.  GoPro redacted motion for attorney fees.  Document #16-230821-017M.  360Heros opposition.  Document #16-230821-018B.  GoPro reply.  Document #16-230821-019B.  Complaint.  Document #16-230821-020C.)