In denying defendant's motion for attorneys' fees under 35 U.S.C. § 285, the court found that plaintiff did not assert objectively baseless positions in subjective bad faith because plaintiff conceded invalidity (subject to appeal) following the court's claim construction. "Once [plaintiff] realized it could not prevail at trial with the construction provided by the Court, [plaintiff] conceded to summary judgment in order to appeal the Court’s construction. . . . The Court finds that because [plaintiff] conceded to invalidity when its theory of validity was no longer viable under the Court’s claim construction, [plaintiff] was not 'manifestly unreasonable.' Therefore, the Court does not find this case to be exceptional."
BarTex Research LLC v. FedEx Corporation, et. al., 6-07-cv-00385 (TXED June 10, 2011, Order) (Love, M.J.)