"The purpose of section 285 is to provide discretion 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) (citation omitted). Finding no gross injustice in requiring each party to pay the attorney fees incurred in litigating the patent disputes in this action, the Court, in its discretion, declines to award attorney fees to Cognex.

To put it another way, 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). The exceptional case inquiry is a two-step process: determining whether the case is exceptional and, if so, deciding whether to award attorney fees to the prevailing party.

Windsurfing had the burden of proving by clear and convincing evidence that BIC's infringement was willful and that the case was exceptional. State Indus., 883 F.2d at 1581; Badalamenti v. Dunham's, Inc., 896 F.2d 1359, 1364, 13 USPQ2d 1967, 1972 (Fed. Cir.) cert. denied sub. nom., Hyde Athletic Indus. Inc. v. Badalamenti, 498 U.S. 851, 111 S.Ct. 142, 112 L.Ed.2d 109 (1990). In State Industries, supra, at 1581, the Court further explains: