Their "discretion [is] informed by [their] familiarity with the matter in litigation and the interests of justice." Badalamenti v. Dunham's, Inc., 896 F.2d 1359, 1365 (Fed. Cir. 1990) (quotes and cite omitted). "[T]he decision respecting inequitable conduct is a discretionary decision to be made by the judge on his or her own factual findings. . . . Once threshold findings of materiality and intent are established, the court must weigh them to determine whether the equities warrant a conclusion that inequitable conduct occurred."

Beckman Instruments, Inc. v. LKB Produkter AB, 892 F.2d 1547, 1551 (Fed. Cir. 1989). See also 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) ("there must be some finding of unfairness, bad faith, or inequitable conduct"). The exceptional case finding must be supported by clear and convincing evidence.

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."

Moreover, Davol's willful infringement, despite the permanent injunction, justifies an "exceptional case" finding under 35 U.S.C. § 285 and an award of attorney fees and costs, because it would otherwise be grossly unjust to force Stryker to bear these expenses. See Badalamenti v. Dunham's, Inc., 896 F.2d 1359, 1360 (Fed. Cir. 1990), cert. denied, 498 U.S. 851, 111 S.Ct. 142, 112 L.Ed.2d 109 (1990). Stryker claims $119,505.50 in attorney fees and $26,057.02 in costs.