The “majority view” is that “sanctions may be imposed where evasive or incomplete responses impede discovery.” Badalamenti v. Dunham's, Inc., 896 F.2d 1359, 1363 (Fed. Cir. 1990) (citations omitted). The Badalamenti court summarizes the split as follows:

If the court determines an exceptional case exists, it then, in its discretion, must decide whether to award attorney's fees. Badalamenti v. Dunham's, Inc., 896 F.2d 1359, 1365 (Fed. Cir. 1990) (Badalamenti). The party seeking an exceptional case status has the burden of proving that its case is exceptional by clear and convincing evidence.

First, it permits an award of fees "where it would be grossly unjust that the winner be left to bear the burden of his own counsel which prevailing litigants normally bear." Badalamenti v. Dunham's Inc., 896 F.2d 1359, 1364 (Fed. Cir. 1990), cert. denied 498 U.S. 851, 111 S.Ct. 142, 112 L.Ed.2d 109 (1990) (quoting J.P. Stevens Co. v. Lex Tex Ltd., 822 F.2d 1047, 1052 (Fed. Cir. 1987)) (emphasis in original). Thus, under § 285, an award of attorneys' fees compensates the prevailing party for losses incurred as the consequence of the conduct of the losing party.

The party seeking attorney fees bears the burden of proving that the case is exceptional by clear and convincing evidence. Carroll Touch, Inc. v. Electro Mechanical Sys., 15 F.3d 1572, 1584 (Fed. Cir. 1993); Badalamenti v. Dunham's Inc., 896 F.2d 1359, 1365 (Fed. Cir. 1990). If the court finds the case exceptional, the court must then exercise its discretion in determining whether attorney fees should be awarded. J.P. Stevens Co. v. Lex Tex Ltd., 822 F.2d 1047, 1050 (Fed. Cir. 1987).

Accordingly, the appropriateness of awarding attorneys' fees will not be discussed here. "In addition, even if the case is found to be exceptional, the district court in its discretion may decline to award attorney fees." Badalamenti v. Dunham's, Inc., 896 F.2d 1359, 1365 (Fed. Cir. 1990). Even if the Court had determined that this case was exceptional, it would not award attorneys' fees. 35 U.S.C. § 285 does not entitle Paddock to an award.

A shorthand way of putting this is that a court may find a case exceptional if the conduct of the losing party would make it grossly unjust for the prevailing party to be left with the burden of litigation expenses. Badalamenti v. Dunham's, Inc., 896 F.2d 1359, 1364 (Fed. Cir. 1990). "Cases awarding attorney fees to prevailing patentees have typically found `exceptional' circumstances in willful and deliberate infringement by an infringer, or in the prolongation of litigation in bad faith."

In the end, there can be no doubt that this case was exceptional in many ways, but the Court cannot conclude that it was "exceptional" for the purposes of satisfying 35 U.S.C. § 285. That is, the Court is not satisfied that "clear and convincing evidence" demonstrates that "it would be grossly unjust that the winner be left to bear the burden of his own counsel which prevailing litigants normally bear." Badalamenti v. Dunham's, Inc., 896 F.2d 1359, 1365 (Fed. Cir. 1990) (citations omitted) (emphasis in original). Absent a finding that this lawsuit represented an exceptional case under 35 U.S.C. § 285, and given its own view of the attorneys' conduct in handling of the case, the Court is also not inclined to award fees under 28 U.S.C. § 1927.