On June 23, 2015, following a trip up to the Supreme Court, Judge Means ordered patent holder Allcare to pay accused infringer Highmark over $5 million (decision available here). Judge Means concluded that the case was “exceptional” under 35 U.S.C. § 285, thereby justifying an award of attorney’s fees. As a basis for the decision, Judge Means wrote:
The factual findings supporting the Court’s observation, which were not disturbed on appeal, are more than sufficient to support an exceptional-case finding under the standard announced in Octane. In particular, the Court found that Allcare: (1) failed to perform an adequate pre-filing investigation into its infringement claims, (2) ignored information it learned pre-filing about Highmark’s system that cast doubt on Allcare’s claims of infringement, (3) maintained its infringement claims well after such claims had been shown by its own experts to be without merit and for the express purpose of maintaining leverage against Highmark, (4) used a phony informational survey to identify Highmark and other companies as targets from which licensing fees could be demanded and litigation threatened, (5) asserted meritless defenses of res judicata and collateral estoppel that its attorneys knew to be frivolous, (6) shifted its claim construction without leave of Court and after the deadline set out in this Court’s scheduling order, and (7) made misrepresentations to the Western District of Pennsylvania in connection with the transfer of the case to this Court.