It’s Down There Somewhere: Viavi’s Section 285 Fee Award Affirmed

by Dennis Crouch

Viavi Solutions Inc. v. Platinum Optics Technology Inc. (PTOT), No. 2025-1362 (Fed. Cir. Sept. 8, 2026) (nonprecedential)

Analogy is a key feature of judicial reasoning. Today’s decision uses The Big Lebowski to make the point that discovery cannot be used as an open-ended search for a claim that a plaintiff does not yet have. Affirming an exceptional-case finding under § 285, the Federal Circuit compared Viavi’s proposed search through PTOT’s business records to the film’s hapless intruders repeatedly dunking the Dude in a toilet while looking for money that was not there, prompting the Dude’s sarcastic response: “It’s down there somewhere, let me take another look.”

Viavi sued PTOT in the N.D. Cal. over optical filters used for 3D sensing in mobile phones, accusing a single sample filter in its possession, the "11246 Filter," "or a filter that is not materially different than that." Five months in, PTOT moved for summary judgment with a declaration stating that the 11246 Filter had not been designed for the accused devices and had not been manufactured or sold since May 2020. Viavi never contested that declaration, never deposed the declarant, and never sought discovery aimed at testing it. It also never dropped the filter from its infringement contentions, keeping it in place, as its counsel put it, as "belt and suspenders" while pursuing discovery aimed at finding some other PTOT filter to accuse instead.  Viavi ultimately dismissed its case with prejudice, which mooted the summary judgment motion before it was ever decided.  Judge Davila then found the case exceptional and started the fee clock on the day that declaration was filed. The Federal Circuit has now affirmed.

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