Wuhan Healthgen Biotechnology Corporation et al v. ExpressTec LLC et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
)
Wuhan Healthgen Biotechnology Corp., et al., )
)
Plaintiff/ )
Counterclaim Def., )
) CIVIL ACTION
v. )
) No. 24-4089-KHV
ExpressTec LLC, et al., )
)
Defendant/ )
Counterclaim Pltf. )
____________________________________________)
)
Ventria Bioscience Inc., )
)
Plaintiff, )
) CIVIL ACTION
v. )
) No. 21-4008-KHV
Wuhan Healthgen Biotechnology Corp., )
)
Defendant. )
____________________________________________)
MEMORANDUM AND ORDER
This matter comes before the Court on the Motion For Attorney’s Fees (Doc. #404) filed
March 19, 2026 by ExpressTec LLC and InVitria, Inc. (f/k/a Ventria Bioscience Inc.) (collectively,
“InVitria”). InVitria seeks $950,000 in attorney’s fees, non-taxable costs and expenses defending
claims of patent infringement by Wuhan Healthgen Biotechnology Corp. and Healthgen
Biotechnology Co., Ltd. (collectively, “Healthgen”). See id. at ¶ 8. For reasons stated below, the
Court overrules InVitria’s motion.
Background
On February 19, 2025, the Court overruled InVitria’s motion for judgment on the
Case 5:24-cv-04089-KHV Document 412 Filed 07/28/26 Page 1 of 4

-2-
pleadings. On February 4, 2026, it overruled Healthgen’s motion for dismissal with prejudice.
Those orders recite the background facts. Over many years, in various venues, both sides have
contributed to excessive cost and delay in never-ending litigation over the parties’ patents.
During the pretrial conference, InVitria withdrew all of its remaining patent infringement
claims against Healthgen.1 See Pretrial Order (Doc. #279) filed December 9, 2025 at 68. The
Court ruled that InVitria could withdraw its patent infringement claims without prejudice but
placed strict conditions if InVitria ever attempted to reassert its claims, because the timing and
stated reason of its withdrawal suggested that it was tactical in nature. Memorandum And Order
(Doc. #339) filed February 4, 2026.
On February 3, 2026, the parties negotiated settlement terms. InVitria proposed a
framework which would resolve all remaining claims and counterclaims, including mutual
releases, mutual covenants not to sue and a payment to Healthgen. On February 5, 2026, Healthgen
accepted InVitria’s proposed terms. On February 9, 2026, InVitria informed the Court that the
parties had reached an agreement in principle. While drafting the settlement agreement, InVitria
added terms that Healthgen found unacceptable and outside the agreement in principle. On
February 16, 2026, Healthgen filed its Motion To Enforce Settlement Agreement And
Dismiss (Doc. #351), asking the Court to enforce the agreement in principle. On February 24,
2026, before the Court ruled on that motion, Healthgen filed a joint Stipulation Of Dismissal (Doc.
#379) which dismissed all of its remaining claims with prejudice. On March 3, 2026, the Court
found that it lacked jurisdiction to rule on Healthgen’s motion to enforce settlement, since the
stipulation of dismissal extinguished the case or controversy. See Transcript Of Telephone Status
1 InVitria originally asserted infringement of the ‘951 Patent in Case No. 21-4008.
It asserted infringement of the ‘389 Patent as a counterclaim in Case No. 24-4089.
Case 5:24-cv-04089-KHV Document 412 Filed 07/28/26 Page 2 of 4

-3-
Conference (Doc. #396).
Legal Standard
Under 35 U.S.C. § 285, on a specific finding of exceptional circumstances, the Court has
discretion to award attorney’s fees to the prevailing party of a patent action. “Exceptional
circumstances” include “inequitable conduct during prosecution of a patent, misconduct during
litigation, vexatious or unjustified litigation, or a frivolous suit.” Bayer Aktiengesellschaft v.
Duphar International Research B.V., 738 F.2d 1237, 1242 (Fed. Cir. 1984). A case is exceptional
where, considering the totality of the circumstances, it stands out from others with respect to the
substantive strength of a party’s litigating position—considering both the governing law and the
facts of the case—or the unreasonable manner in which the case was litigated. Octane Fitness,
LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 554 (2014). In considering the totality of
circumstances, a district court may weigh factors such as frivolousness, motivation, objective
unreasonableness and the need to advance considerations such as compensation and deterrence.
Id. at 554 n.6 (citation omitted). While Section 285 grants the Court broad discretion, it is not
unbridled and only a limited universe of circumstances warrants a finding of exceptionality in a
patent case. Wedgetail, Ltd. v. Huddleston Deluxe, Inc., 576 F.3d 1302, 1304 (Fed. Cir. 2009).
Analysis
InVitria asks the Court to award $950,000 in attorney’s fees, nontaxable costs and expenses
incurred defending claims of patent infringement asserted by Healthgen. It argues that since
Healthgen dismissed all of its claims with prejudice, it is the prevailing party. It also argues that
this case is exceptional because of Healthgen’s unreasonable and vexatious conduct throughout
the litigation, including (1) failing to adequately investigate its infringement claims before filing
its complaint, (2) failing to set out competent infringement contentions, (3) knowingly ignoring
Case 5:24-cv-04089-KHV Document 412 Filed 07/28/26 Page 3 of 4

-4-
InVitria’s manufacturing batch records and Dr. Weber’s declaration that proved noninfringement
and (4) waiting to withdraw its claims until two weeks before trial. In response, Healthgen argues
that InVitria is not the prevailing party because the parties entered into a settlement agreement and
that the case is not exceptional because its infringement claims and conduct were reasonable
throughout the litigation.
The Court need not address whether InVitria is a prevailing party, because this is not an
exceptional case. Relative to the conduct of InVitria, Healthgen’s conduct is not so egregious for
this case to “stand out” or warrant an attorney’s fee of $950,000 to InVitria. See Octane Fitness,
572 U.S. at 554. Healthgen’s claims were sufficiently supported to survive a Rule 12(c) judgment
on the pleadings motion, a Daubert challenge and summary judgment. At those times, the Court
did not find that Healthgen’s claims were frivolous or objectively unreasonable, and it declines to
do so now. Further, the record does not support a finding that relative to InVitria, Healthgen
behaved frivolously or in an objectively unreasonable manner. Here, both parties share
responsibility for unnecessary delay and expense, dubious litigation strategy and tactical
obstruction in seeking resolution of their claims. This case was exceptional in the degree to which
both parties abused the litigation process, but Section 285 was not enacted to address that variety
of “exceptionality.”
IT IS THEREFORE ORDERED that InVitria’s Motion For Attorney’s Fees (Doc. #404)
filed March 19, 2026 is OVERRULED.
Dated this 27th day of July, 2026 at Kansas City, Kansas.
/s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge
Case 5:24-cv-04089-KHV Document 412 Filed 07/28/26 Page 4 of 4