An award of attorney's fees for an exceptional case is vacated when the underlying conduct, such as a determination of inequitable conduct, is vacated. Taltech Ltd. v. Esquel Enterprises Ltd., 604 F.3d 1324, 1328 (Fed. Cir. 2010). Here, the 2009 award of six million dollars was vacated when the en banc panel vacated the finding of inequitable conduct on which the finding of an exceptional case was based.
An award of attorney's fees for an exceptional case is vacated when the underlying conduct, such as a determination of inequitable conduct, is vacated. Taltech Ltd. v. Esquel Enterprises Ltd., 604 F.3d 1324, 1328 (Fed. Cir. 2010). Here, the 2009 award of six million dollars was vacated when the en banc panel vacated the finding of inequitable conduct on which the finding of an exceptional case was based.
This court reviews de novo a determination of post-judgment interest. Taltech Ltd. v. Esquel Enters. Ltd., 604 F.3d 1324, 1335 (Fed.Cir.2010). III.
Nevertheless, the Court recognizes that some of the more articulate protests from Federal Circuit judges on the overbreadth of inequitable conduct in recent years have come from dissenting judges in their own cases. See Taltech Ltd. v. Esquel Enterp. Ltd., 604 F.3d 1324, 1335 (Fed. Cir. 2010) (Gajarsa, J., dissenting) (criticizing the "ongoing pandemic of baseless inequitable conduct charges that pervade our patent system" that the); Hoffman-La Roche, Inc. v. Promega Corp., 323 F.3d 1354, 1373 (Fed. Cir. 2003) (Newman, J., dissenting) ("My colleagues have distorted the patent process, and the science it supports, into a game of high stakes hindsight that few patents can survive."). These protests suggest that while the "game of high stakes hindsight" inequitable conduct invites is perceived by many judges as normatively undesirable, the jurisprudence of the Federal Circuit is trending in the opposite direction. It is the role of this Court, therefore, to apply that jurisprudence, even if it might disagree with the underlying policy implications.
"If the materiality and intent requirements are met, the court must then determine whether the cited conduct amounts to inequitable conduct by balancing the levels of materiality and intent; a greater showing of one allows a lesser showing of the other." Taltech Ltd. v. Esquel EnterprisesLtd., 604 F.3d 1324, 1328 (Fed. Cir. 2010); see also Kingsdown Medical Consultants, Ltd. v. Hollister Inc., 863 F.2d 867, 876 (Fed. Cir. 1988) ("As an equitable issue, inequitable conduct is committed to the discretion of the trial court.") (en banc in relevant part).
We apply regional circuit law in reviewing a determination of pre- and post-judgment interest on a damages award. Taltech Ltd. v. Esquel Enters. Ltd. , 604 F.3d 1324, 1335 (Fed. Cir. 2010). The Third Circuit reviews such determinations de novo.
We apply the regional circuit's law when reviewing the accrual date for post-judgment interest. Taltech Ltd. v. Esquel Enters. Ltd., 604 F.3d 1324, 1335 (Fed. Cir. 2010). The Sixth Circuit applies the rationale of Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827 (1990), to determine when post-judgment interest starts accruing.
District courts have often awarded attorneys' fees under ยง 285 following a finding of inequitable conduct, and this court has upheld such awards. See, e.g. , Taltech Ltd. v. Esquel Enters. Ltd. , 604 F.3d 1324, 1327, 1329, 1333 (Fed. Cir. 2010) ; Nilssen v. Osram Sylvania, Inc. , 528 F.3d 1352, 1358โ59 (Fed. Cir. 2008) ; Bruno Indep. Living Aids, Inc. v. Acorn Mobility Servs., Ltd. , 394 F.3d 1348, 1350 (Fed. Cir. 2005) ; Brasseler, U.S.A. I, L.P. v. Stryker Sales Corp. , 267 F.3d 1370, 1386 (Fed. Cir. 2001). Many of these cases predate Therasense , where we heightened the standard for inequitable conduct.
Exceptional Case Order, at *15. Moreover, before discussing the various instances of O2 Micro's misconduct, the district court also cited Taltech Ltd. v. Esquel Enterprises Ltd., 604 F.3d 1324, 1329 (Fed.Cir.2010), to clarify that โ[l]itigation misconduct and unprofessional behavior are relevant to the award of attorney fees, and may suffice to make a case exceptional.โ Exceptional Case Order, at *18.
Exceptional Case Order, at *15. Moreover, before discussing the various instances of O2 Micro's misconduct, the district court also cited Taltech Ltd. v. Esquel Enterprises Ltd., 604 F.3d 1324, 1329 (Fed. Cir. 2010), to clarify that "[l]itigation misconduct and unprofessional behavior are relevant to the award of attorney fees, and may suffice to make a case exceptional." Exceptional Case Order, at *18.