A recent Texas Lawyer story, “U.S. District Judge Rodney Gilstrap Hammers Patent Plaintiff with $390K Fee Award,” reports that the bill has finally come due for the first Eastern District of Texas patent litigant found to have filed an "exceptional case"—one that was so baseless it warranted the litigant paying the other side's attorney fees—and U.S. District Judge Rodney Gilstrap ordered the plaintiff to pay $390,000 for troubling 24 separate defendants with weak claims.

The plaintiff, eDekka, is a Plano-based nonpracticing entity and serial plaintiff that Gilstrap slammed late last year for pursuing an "obviously weak patent" for the purpose of extracting small "nuisance value settlements" from the defendants with no intention of trying their cases.

In his Jan. 19 order, Gilstrap awarded attorney fees ranging from $13,000 to $30,000 to the 24 defendants who were sued by eDekka's claim in an attempt to collect on a patent for storing label information that Gilstrap ruled was an "ineligible concept."  Gilstrap concluded in his Dec. 17 order in eDekka v. 3Balls.com that eDekka's case was "exceptional" under 35 U.S.C. §285—a law that allows federal judges to award attorney fees against patent parties who file baseless pleadings.

In 2014, the U.S. Supreme Court issued Octane Fitness v. ICON Health & Fitness, one of two high court patent rulings that gave trial courts a freer hand in cracking down on litigants who filed frivolous claims by giving them more discretion to find cases exceptional under §285.  And ever since, patent lawyers have been watching to see how far a litigant would have to push the nation's busiest patent judge before he would find their case exceptional.

In a brief eDekka filed on the attorney fee request, the company argued that the defendants should be awarded no attorney fees because they didn't file their request in a timely manner.  Alternatively, eDekka argued that the defense attorney hours and rates should be reduced.

"While each of these attorneys may be highly skilled such that they may consistently bill at such high rates, for purposes of this award of attorney fees, the rates should be marked down to the prevailing rate, rather than the rate of the 'lions of the bar,'" eDekka insisted in its pleading.