The Threshold Of Exceptionality: There Is A Line, And It Can Be Crossed

Non-practicing entity ("NPE") plaintiffs beware and NPE defendants be delighted: sanctions for objectively unreasonable claims and conduct are alive and well. Defendants in NPE litigations, particularly in the Eastern District of Texas, received encouraging news recently when Judge Gilstrap granted $390,829 in fees to more than 20 defendants in response to motions for attorneys' fees on the heels of a decision invalidating the NPE's asserted patent claims as unpatentable subject matter under 35 U.S.C. § 101. eDekka LLC v. 3Balls.com, Inc., No. 2:15-CV-541 JRG, Dkt. 136 (E.D. Tex. Jan. 20, 2016); eDekka LLC v. E Revolution Ventures, Inc., No. 2:15-CV-585 JRG, Dkt. Nos. 192 (E.D. Tex. Jan. 20, 2016). Although the post-Alice § 101 landscape is still largely unpredictable, defendants in NPE litigations can credit the decision as a reminder of the viability of fee-shifting in cases that cross "the threshold of exceptionality."