MEMORANDUM AND ORDER
JOHN W. LUNGSTRUM, District Judge.
This matter comes before the Court on the motion by defendants and counterclaim plaintiffs Imura International U.S.A., Inc. and Vita Craft Corporation (collectively "Vita Craft") for attorney fees pursuant to 35 U.S.C. § 285 and 28 U.S.C. § 1927 (Doc. # 437). For the reasons set forth below, the motion is denied.
In this case, the parties asserted various patent claims and state-law contract and tort claims against each other arising out of contracts between them. On August 20, 2010, the Court granted summary judgment in favor of defendants on the state-law contract and tort claims asserted by plaintiff HR Technology, Inc. ("HRT"). On March 9, 2012, the Court dismissed or granted summary judgment to defendants on HRT's various patent claims. Also on March 9, 2012, the Court granted summary judgment in favor of Vita Craft on its claim for a declaration of invalidity of certain claims of three patents held by HRT. On April 4, 2012, the Court dismissed Vita Craft's affirmative contract claims, based on Vita Craft's decision to abandon those claims. On April 24, 2012, after a bench trial, the Court issued its findings and conclusions of law supporting judgment in favor of HRT on Vita Craft's claim of inequitable conduct in the prosecution of HRT's patents. On September 28, 2012, after another bench trial, the Court awarded HRT judgment on its claim against Vita Craft for specific performance of a contractual term requiring the return of certain information.
II. Request for Attorney Fees Under 35 U.S.C. § 285
Vita Craft seeks an award of attorney fees in the amount of $1, 686, 630.50, incurred in litigating the patent claims in this case, pursuant to 35 U.S.C. § 285. Section 285 provides in its entirety: "The court in exceptional cases may award reasonable attorney fees to the prevailing party." Id.
When deciding whether to award attorney fees under § 285, a district court engages in a two-step inquiry. First, the court must determine whether the prevailing party has proved by clear and convincing evidence that the case is exceptional.... If the district court finds that the case is exceptional, it must then determine whether an award of attorney fees is justified.
MarcTec, LLC v. Johnson & Johnson, 664 F.3d 907, 915-16 (Fed. Cir. 2012) (citations omitted).
A case may be deemed exceptional under § 285 where there has been willful infringement, fraud or inequitable conduct in procuring the patent, misconduct during litigation, vexatious or unjustified litigation, conduct that violates Federal Rule of Civil Procedure 11, or like infractions. Where, as here, the alleged infringer prevails in the underlying action, factors relevant to determining whether a case is exceptional include the closeness of the question, pre-filing investigation and discussions with defendant, and litigation behavior. Where a patentee prolongs litigation in bad faith, an exceptional finding may be warranted.
Absent litigation misconduct or misconduct in securing the patent, a district court can award attorney fees under § 285 only if the litigation is both: (1) brought in subjective bad faith; and (2) objectively baseless. Under this standard, a patentee's case must have no objective foundation, and the plaintiff must actually know this. Whether a case is objectively baseless requires an objective assessment of the merits.
Id. at 916 (internal quotations and citations omitted). "Litigation misconduct typically involves unethical or unprofessional conduct by a party or his attorneys during the course of adjudicative proceedings." Id. at 919 (internal quotation and citation omitted).
Vita Craft argues that this case should be deemed exceptional for purposes of Section 285, with respect the litigation of the parties' patent claims, on the basis of HRT's misconduct. Specifically, Vita Craft cites HRT's violation of discovery rules and orders, HRT's pursuit of baseless claims, and other conduct by HRT that allegedly delayed the litigation unnecessarily. Whether these alleged improprieties are considered individually or collectively, however, the Court concludes that Vita Craft has failed to show by clear and convincing evidence that this case is exceptional, and that an award of attorney fees in Vita Craft's favor is not justified.
The Court begins with Vita Craft's argument that HRT's patent claims were baseless. Vita Craft argues that HRT pursued those claims solely to increase the costs of litigation in order to pressure Vita Craft into a more favorable resolution.
HRT originally alleged infringement by Vita Craft of HRT's '585 Patent and '169 Patent. HRT eventually abandoned its claim under the '585 Patent, and the Court granted summary judgment on the claim under the '169 Patent. Vita Craft calls HRT's infringement claims baseless, even frivolous. Vita Craft has not shown that those claims were objectively baseless, however. Most significantly, Vita Craft has not undertaken any analysis of the particular claims of HRT's patents, as interpreted by the Court, to show that its products could not possibly have infringed those claims. It is true that HRT abandoned its claim under the '585 Patent; it did so, however, after adverse Markman rulings by the Court, and the Court cannot conclude that HRT's Markman argument-that the patent claims should be strictly construed and should not be limited by language in the specification-lacked a reasonable basis. Moreover, the Court notes that it did not rule directly on any question of infringement ...