Whether district courts should consider the weakness of an infringement claim after ruling in favor of the defendant on invalidity

QUESTIONS PRESENTED The Patent Statute provides, simply and succinctly, that “[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party.” 35 U.S.C. § 285. This edict has remained unchanged since enactment of the Patent Statute in 1952. However, in 2014, the Supreme Court corrected long standing application of Section 285 by the U.S. Court of Appeals for the Federal Circuit in the seminal case Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545 (2014). It has been near universally accepted that Octane Fitness made it easier to obtain fees for the prevailing party by doing away with rigid and complex analyses imposed by the Federal Circuit application of the law, rather than focusing on the law itself. Near simultaneously, the Supreme Court issued its decision in Highmark Inc. v. Allcare Health Management System Inc., 134 8. Ct. 1744 (2014). There, the Supreme Court overturned the previous de novo standard of review for the exceptional-case determination under Section 285. The court held that “[blecause § 285 commits the determination whether a case is ‘exceptional’ to the discretion of the district court, that decision is to be reviewed on appeal for abuse of discretion.” Since 2014, judicial “discretion” has been inconsistent and contradictory in a way that frustrates the goal of 35 U.S.C. § 285 which is to improve the efficiency of the judiciary by discouraging the filing of bogus law suits. The questions presented are: 1. Whether District Court judges should be required to consider the weakness of an infringement ii claim, after ruling in favor of the defendant on invalidity, where, as here, (i) the issue of noninfringement was fully briefed, (ii) claim construction, of the only disputed term, was performed by the judge in ruling on _ invalidity, and _ (iii) _ plaintiff misrepresented to the court both the need for claim construction, and the nature of the alleged infringement; and concomitantly, should Circuit Courts of Appeals give more scrutiny to District Court judges who use discretion without considering all relevant factors. 2. Whether the district court failed to fairly consider all relevant factors bearing on the issue of exceptionality. 3. Whether violating Fed. R. C. P. 7, in an apparent effort to hide the improper motive for bringing and sustaining a weak patent infringement case, should lead to a per se rule that a case is exceptional; alternatively, whether such a violation should have been considered as one of the factors in determining exceptionality.