After construing a critical disputed claim term, the court granted defendants FirstCall Network, Inc. and the City of Friendswood’s motion for summary judgment finding no infringement. Thereafter, defendants filed a motion for an award of attorneys’ fees under 35 U.S.C. § 285, arguing that the case qualifies as “exceptional” based on prior litigation between TechRadium and First Call in which the same court rejected TechRadium’s proposed construction for “user” in related patents. During the claim construction proceedings in the prior litigation, TechRadium’s outside counsel conceded that if defendants’ proposed construction prevailed, that would “make it virtually impossible for any useful mass notification system to infringe the patent.”

In declaring the case exceptional, the court noted that the infringement claims against defendants depended on a claim construction that the court clearly rejected in prior litigation on closely related patents and that TechRadium’s in-house lawyer knew the significance of the court’s prior claim construction as he was in the courtroom when Techradium’s outside counsel admitted that the construction of “user” would essentially defeat its claims of infringement. The court also reasoned that the prior construction “decisively rejected” TechRadium’s proposed construction on grounds that apply equally in the instant case and further, noted that TechRadium did not challenge the prior claim construction by appeal or otherwise. Moreover, the court found that TechRadium’s arguments for a different construction in the instant case were “wholly unsubstantial and without merit” and were “merely a vehicle to relitigate prior, clearly rejected, positions.” As a result, the court granted the motion and awarded defendants over $112,000 in attorneys’ fees and expenses.

TechRadium Inc v. FirstCall Network, Inc., No. 4-13-cv-02487 (S.D. Tex. February 27, 2015) (Rosenthal, J.).