       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

            JAKE LEE, AN INDIVIDUAL,
                 Plaintiff-Appellant

                           v.

      MIKE'S NOVELTIES, INC., A TEXAS
   CORPORATION, DBA MIKE'S WORLDWIDE
IMPORTS, MANISCH CHANDER, AN INDIVIDUAL,
AKA MIKE CHANDER, AKA MANISCH CHANDRA,
           AKA MIKE CHANDRA,
             Defendants-Appellees
            ______________________

                      2014-1453
                ______________________

    Appeal from the United States District Court for the
Central District of California in No. 2:10-cv-02225-JAK-
JC, Judge John A. Kronstadt.
                 ______________________

                Decided: June 23, 2015
                ______________________

     ANTHONY H. HANDAL, Handal & Morofsky, LLC, Fair-
field, CT, for plaintiff-appellant.

    LOUIS F. TERAN, SLC Law Group, Pasadena, CA, for
defendants-appellees.
2                         LEE   v. MIKE'S NOVELTIES, INC.



                 ______________________

     Before DYK, MOORE, and WALLACH, Circuit Judges.
     Concurring opinion filed by Circuit Judge WALLACH.
PER CURIAM.
     Jake Lee appeals a decision of the Central District of
California denying Lee’s request for attorney’s fees pur-
suant to 35 U.S.C. § 285. In a previous appeal in this case,
we reviewed a determination by the district court that the
case was exceptional and that attorney’s fees should be
awarded. We held that as a matter of law the infringe-
ment had not been willful. Lee v. Mike’s Novelties, Inc.,
543 F. App’x 1010, 1017 (Fed. Cir. 2013). On remand, the
district court was “to determine whether [defendants’]
litigation misconduct is independently sufficient to make
this an exceptional case such that attorney’s fees are
warranted.” Id. at 1018
    On remand, the district court initially held that “[t]he
three forms of litigation misconduct [at issue] are insuffi-
cient to find that the case is exceptional, and that attor-
ney’s fees should be awarded.” S.A. 4. Lee appealed to our
court. Thereafter, the Supreme Court decided Octane
Fitness, LLC v. Icon Health and Fitness, Inc., 134 S. Ct.
1749 (2014), and Highmark Inc. v. Allcare Health Man-
agement Systems Inc., 134 S. Ct. 1744 (2014). Upon a
motion by the plaintiff, the district court subsequently
issued an indicative ruling pursuant to Federal Rule of
Civil Procedure 62.1 reaffirming its decision not to award
fees under the new standard of Octane and Highmark.
The district court held that, under Octane, “[c]onsidering
the totality of the circumstances, given that the ‘evidence
was close’ and the litigation misconduct was ‘modest,’
there is not sufficient basis to conclude that Defendants
maintained an exceptionally weak litigating position or
advanced exceptionally meritless claims.” S.A. 11. There-
LEE   v. MIKE'S NOVELTIES, INC.                           3



fore, the district court ruled that it would not award fees
under the new standard.
    On appeal, Lee argues that the original attorney’s fee
award (which was the subject of the first appeal) should
be reinstated in light of Octane and Highmark. We see no
basis for reinstating the original district court decision,
particularly given the district court’s determination not to
award fees under the new Octane standard and the
standard of deferential review under Highmark.
                            AFFIRMED
                              COSTS
      Costs to appellees.
        NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                 ______________________

             JAKE LEE, AN INDIVIDUAL,
                  Plaintiff-Appellant

                             v.

       MIKE’S NOVELTIES, INC., A TEXAS
   CORPORATION, D/B/A MIKE’S WORLDWIDE
IMPORTS, MANISCH CHANDER, AN INDIVIDUAL,
A/K/A MIKE CHANDER, AKA MANISCH CHANDRA,
            A/K/A MIKE CHANDRA,
              Defendants-Appellees
             ______________________

                       2014-1453
                 ______________________

    Appeal from the United States District Court for the
Central District of California in No. 2:10-cv-02225-JAK-
JC, Judge John A. Kronstadt.
                 ______________________
WALLACH, Circuit Judge, concurring.
    While I agree with the panel’s decision to affirm the
district court’s denial of attorney fees, I write separately
to address the behavior of Mr. Teran, counsel of Appellees
Mike’s Novelities, Inc.
    The district court’s Attorney Fees Order identified
three different categories of litigation misconduct support-
ing its initial award of attorney fees under 35 U.S.C.
2                               LEE   v. MIKE’S NOVELTIES, INC.



§ 285. Specifically, the district court found Mr. Teran
threatened to file complaints of professional misconduct
by Lee’s counsel based on unsubstantiated assertions that
Lee’s counsel “intimidated and threatened [Mike Novel-
ties’] customers.” S.A. 4. The court also found Mr. Teran
employed bad faith litigation tactics because he failed to
produce required documents during discovery. Finally,
the court found Mr. Teran made intimidating statements
during settlement offers that belied the district court’s
rulings on claim construction and summary judgment.
     It is ironic Mr. Teran sought to gain leverage in the
litigation before the district court by threatening to report
Lee’s counsel for potential violation of the California and
New York Rules of Professional Conduct, while that very
action potentially violated Rule 8.4(c) of the American Bar
Association Model Rules of Professional Conduct
(“MRPC”). 1
    Mr. Teran’s unsupported representations regarding
the court’s determinations on claim construction and
summary judgment, his failure to produce required docu-
ments during discovery, and his attempt to intimidate
opposing counsel via unsubstantiated accusations consti-
tute actions that fail to maintain the integrity of the
profession.




    1   Rule 8.4(c) of the MRPC states “[i]t is professional
misconduct for a lawyer to . . . engage in conduct involv-
ing dishonesty, fraud, deceit or misrepresentation.”
