72 710) Early in the suit, Ubisoft expressed concern to PDIC that its infringement theory mistakenly relied on the notionthat “the backgroundlighting and effects [in the accused games] are produced or controlled by a musicfile.” (D.I.
In his June 16, 2017 Report and Recommendation (“R&R”), he noted: [I]t is clear that before the PTAB, PDIC arguedthat the claim limitation ... required that control information must correspond not to time, position, or locations in a sound recording, but simply to the audio signal itself.
45-1 at 27-29, 31-33) In other words, PDIC knew or should have known that, in the accused games, “once the timer starts, the graphics are displayed irrespective of the audio content” — functionality that this Court had clearly explainedin its claim construction order was disclaimed.
Rather, the Court finds that PDIC’s continued pursuit of its infringement theory despite its substantive weakness post-claim construction, when considered as part of the totality of the circumstances, renders the entire case exceptional.
398 at 9) (“In addition to its reasonable attorneys’ fees, Ubisoft also should be awarded the expensesit was forced to incur in order to defend against PDIC’s meritless infringement claim.”) Assuming, arguendo, that Section 285 permits the recovery of such expenditures,’ the Court is not persuadedit is appropriate under the totality of the circumstances presented here.