Denial of § 285 Fee Award Unchanged Under Highmark and Octane

In light of Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 134 S. Ct. 1744 (2014) and Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749 (2014), the court sua sponte reconsidered an earlier order denying defendant's motion for attorney fees under 35 U.S.C. § 285 and again determined that a fee award was not warranted because plaintiffs' claims were not baseless under the new standards. "The Court ultimately concluded that [defendant] had the better argument in its Markman ruling, but the Court only did so after fifteen pages of analysis. It is worth noting that, in its analysis of the term, the Court’s decision was based on the weight of the evidence — the Court did not find a clear and unmistakable disavowal or definition of the term in either the patent or the prosecution history. . . . [T]he Court does not consider a case 'exceptional' simply because there is dispute over the construction of patent claims and that a defendant or plaintiff’s construction proved to be incorrect — there must be more."

Calypso Wireless v. T-Mobile USA Inc., 2-08-cv-00441 (TXED March 5, 2015, Order) (Payne, M.J.)