Judge Robinson recently denied two patent infringement defendants’ motion for attorneys’ fees under 35 U.S.C. § 285 in a case in which the plaintiff gave the defendants covenants not to sue two days before the summary judgment and claim construction hearing. Under the Supreme Court’s Octane Fitness decision, Her Honor found no evidence that the case was exceptional where the defendants “basically argue[d] that these cases are ‘exceptional’ because they would have prevailed on their various defenses if the cases had not been dismissed.’” Computer Software Protection, LLC v. Adobe Systems Inc., C.A. No. 12-451-SLR, Memo. Or. at 3-5 (D. Del. Mar. 31, 2015). As Judge Robinson explained, “however, none of the defenses posited by defendants are so evident from the record at bar that the court can say with any certainty that defendants not only would have succeeded on the merits, but that the strength of their arguments would have been exceptionally dispositive. Indeed, in a case where settlements were reached with other parties, and the court did not construe the claims, or resolve multiple discovery disputes, or resolve motions to dismiss or for summary judgment, to characterize these circumstances as exceptional is exceptionally presumptuous, as well as inconsistent with the court’s understanding of what justifies the fee-shifting provisions of § 285.” Id. at 5. Judge Robinson also noted that she was “not inclined to address the merits of [the asserted] defenses as though the cases had not been dismissed, a monumental waste of judicial resources in the context of a discretionary paradigm.” Id. at 5 n.5.