A recent Texas Lawyer story, “Dallas Lawyer Gets Exceptional Win for Patent Plaintiff But No Attorney Fees,” reports that, it was certainly exceptional last spring when an Eastern District of Texas jury gave Jamil Alibhai's plaintiff technology client a whopping $88 million in damages for patent infringement and misappropriation of trade secrets.

But Alibhai's resounding victory before a Plano jury wasn't enough recently to convince U.S. District Judge Richard Schell that his win was exceptional in the legal sense—that he confronted a litigation posture that was so unreasonable that it warranted the losing party to paying his attorney fees.

Alibhai's client, Texas Advanced Optoelectronic Solutions Inc., or TAOS, won the huge verdict last March.  And after it accused defendant Intersil of continuing to willfully infringe on its patent for light sensors used in cell phones even after the verdict was issued, TAOS filed a motion for an exceptional case finding under 35 U.S.C. §285.

That law gives federal judges to award attorney fees against patent parties who litigate in unreasonable manner—something the U.S. Supreme Court clarified in its 2014 in Octane Fitness v. ICON Health & Fitness.

While Schell affirmed most of the jury's verdict in ordering Intersil pay $77 million in damages, he found that Intersil's defense of the case was not unreasonable and denied the exceptional case finding in his April 26 order in TAOS v. Intersil.

A plaintiff has yet to win attorney fees in an exceptional case finding from an Eastern District judge, but Alibhai thought his client might have been the first one.  The most significant such ruling in the Eastern District occurred earlier this year when U.S. District Judge Rodney Gilstrap awarded $390,000 to 24 defendants after Plano-based eDekka pursued weak patent claims against them for nuisance value settlements.

"There were many things that Intersil did before the case was brought and after the case was brought that made their infringement and this case exceptional,'' said Alibhai, a partner in Dallas' Munck Wilson Mandala.  "The fact that they had some after the fact defenses shouldn't erase their bad conduct.'

"The judge agrees with this and all of this happened, but look there are defenses," he said, noting it's difficult for plaintiffs to win exceptional case rulings under that analysis.  But overall, Alibhai is pleased with the Schell's order, noting that the exceptional case motion was a small part of the case.