“[A] plaintiff's persistence in setting forth pleadings and arguments that a court has definitively rejected as deficient can weigh in favor [of] a finding of exceptionality.” Soar Tools, LLC v. Mesquite Oil Tools, Inc., No. 5:19-CV-243-H, 2022 WL 1447946, at *8 (N.D. Tex. Feb. 9, 2022) (citing Pirri v. Cheek, 851 Fed.Appx. 183, 188 (Fed. Cir. 2021)). Considered in the context of this case as a whole, Plaintiff's decision to pursue previously undisclosed infringement theories-including theories that Judge Payson had already determined it could not include in an amended complaint or amended final infringement contentions due to its own lack of diligence-makes this an exceptional case.
See, e.g., Energy Heating, LLC, 15 F.4th at 1383-84 (affirming district court's finding of exceptionality based on the complaining party's knowledge of its patent's invalidity “and that ‘no reasonable person could expect to prevail on claims of the patent's validity,'” and holding that the absence of litigation misconduct does not necessarily preclude an exceptionality determination); SRI Int'l, Inc. v. Cisco Sys., Inc., 14 F.4th 1323, 1331-32 (Fed. Cir. 2021) (affirming finding of exceptionality based on district court's determination that defendant's litigation tactics were unreasonably aggressive in relation to the weakness of its case); Fireblok IP Holdings, LLC v. Hilti, Inc., 855 Fed.Appx. 735, 739 (Fed. Cir. 2021) (“The strength of a party's litigation position is what is relevant to an exceptional case determination, not the correctness or success of that position.”); Pirri v. Cheek, 851 Fed.Appx. 183, 188 (Fed. Cir. 2021)