A Chicago federal judge has ruled Commonwealth Edison should be reimbursed for its legal bills in fending off an allegedly inept patent infringement lawsuit concerning smart meters, but the judge still faulted the utility giant for its own conduct in the case. 

The July 22 order was issued by U.S. Senior District Judge Milton Shadur, directing Atlas IP to pay the attorney fees and costs racked up by ComEd in fighting what Shadur termed a “poorly thought-out” suit. 

On Nov. 30 in U.S. District Court for Northern Illinois, Atlas IP filed action against ComEd. The Miami-based Atlas holds the patent for what it called a “medium access control protocol for a wireless network that allows multiple stations to communicate over the network without interfering with each other,” while conserving the batteries of those stations. 

Atlas said ComEd installed smart meters to monitor customers’ electricity and natural gas use, but the meters’ manner of communication allegedly violated Atlas’ patent. Judge Shadur unplugged Atlas’ suit on May 17, saying Atlas’ case rested on “untenable propositions,” in particular, Atlas failed to show how the meters incorporated the patented technology. Atlas is appealing. 

In the aftermath, ComEd asked Shadur to order Atlas to shoulder its expenses, alleging Atlas engaged in unreasonable conduct in pursuing the case. 

Shadur agreed with ComEd, saying he was not impressed with how Atlas pressed its suit. 

Shadur said Atlas's arguments in the case gave the “impression of someone trying to bang a square peg into a round hole,” adding that “filing suit with such a poorly thought-out conception of how the accused products might actually infringe is certainly an unreasonable course of action.” 

Shadur continued, saying the “wobbliness” of Atlas’ suit was “severe enough to justify making Atlas liable for the expense of defending against it.” 

However, ComEd did not provide a figure for its legal costs or, per the court’s rules, a joint statement in conjunction with Atlas as to whether any other issues remain in dispute. These omissions are “complicating matters,” in Shadur’s words. As a consequence, Shadur set a status hearing for July 29 to look into these questions. 

ComEd also sought sanctions against the Chicago firm of Stadheim & Grear, which represented Atlas. Shadur acknowledged the Atlas suit was “flawed,” but concluded ComEd failed to show it was flawed enough to warrant sanctions against the lawyers who took the case. 

Despite largely giving ComEd what it wanted, Shadur observed the company’s attorneys acted with abandon in seeking legal expenses, seeming to “throw every argument counsel could think of against the wall and see what sticks,” with much of their reasoning “ill-conceived.” 

ComEd is represented by the San Francisco firm of Durie Tangri LLP. 

Atlas also has sued the city of Naperville over smart meters the municipality uses to measure utility usage for its utility customers. On July 19 in Chicago federal court, U.S. District Judge Sharon Johnson Coleman dismissed the suit, saying Atlas failed to state “sufficient facts” to support its contention Naperville committed patent infringement.

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Durie Tangri Stadheim and Grear

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