Case: 19-2087   Document: 71     Page: 1   Filed: 07/01/2020




   United States Court of Appeals
       for the Federal Circuit
                 ______________________

          ELECTRONIC COMMUNICATION
              TECHNOLOGIES, LLC,
                 Plaintiff-Appellee

                            v.

           SHOPPERSCHOICE.COM, LLC,
                Defendant-Appellant
               ______________________

                       2019-2087
                 ______________________

     Appeal from the United States District Court for the
 Southern District of Florida in Nos. 9:16-cv-81669-KAM,
 9:16-cv-81677-KAM, Senior Judge Kenneth A. Marra.
                 ______________________

                  Decided: July 1, 2020
                 ______________________

     ARTOUSH OHANIAN, OhanianIP, Austin, TX, argued for
 plaintiff-appellee.

    DAVID K. FRIEDLAND, Friedland Vining, PA, Miami, FL,
 argued for defendant-appellant. Also represented by
 JAMES STEPAN, Law Offices of James A. Stepan, P.A., Hol-
 lywood, FL.
                 ______________________

   Before PROST, Chief Judge, DYK and WALLACH, Circuit
                         Judges.
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 2   ELECTRONIC COMMUNICATION     v. SHOPPERSCHOICE.COM, LLC



 WALLACH, Circuit Judge.
     Appellant      ShoppersChoice.com,       LLC      (“Shop-
 persChoice”) appeals the denial of attorney fees by the U.S.
 District Court for the Southern District of Florida (“District
 Court”) pursuant to 35 U.S.C. § 285, following a judgment
 invalidating independent claim 11 of Appellee Electronic
 Communication Technologies, LLC’s (“ECT”) U.S. Patent
 No. 9,373,261 (“the ’261 patent”) as patent ineligible under
 35 U.S.C. § 101. J.A. 1626–28 (Attorney Fee Order); see
 J.A. 1629 (Order Denying Motion for Reconsideration of
 Denial of Attorney Fees); see also J.A. 1–17 (Motion to Dis-
 miss Judgment), 18–34 (Judgment on the Pleadings). 1 We
 have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). We
 vacate and remand.
                        BACKGROUND
      This case arises from ECT’s allegation that Shop-
 persChoice infringed claim 11 of the ’261 patent. J.A. 1049.
 Entitled “Secure Notification Messaging with User Option
 to Communicate with Delivery or Pickup Representative,”
 the ’261 patent is directed “to systems and methods that
 notify a party of travel status associated with one or more
 mobile things (MTs).” ’261 patent col. 1 ll. 50–51. Inde-
 pendent claim 11 recites a system that provides notifica-
 tion “involving advance notice of a delivery or pickup of a
 good or service” to a “personal communication device
 (PCD)[,]” by means of “one or more transceivers[,]” “one or
 more memories[,]” “one or more processors[,]” and a “com-
 puter program code[.]” Id. col. 93 ll. 12–45; see id. col. 6
 ll. 31–33 (describing “a possible screen message that can




     1   We affirmed the District Court’s decision on the
 merits.   See Elec. Commc’n Techs., LLC v. Shop-
 persChoice.com, LLC, 958 F.3d 1178 (Fed. Cir. 2020).
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 ELECTRONIC COMMUNICATION     v. SHOPPERSCHOICE.COM, LLC     3



 be . . . shown on a notified PCD . . . during a notification
 communication”); id. Fig. 16A. 2
      In September 2016, ECT filed a complaint in the Dis-
 trict Court against ShoppersChoice for, inter alia, infringe-
 ment of claim 11. J.A. 1399 (Amended Complaint); see J.A.
 1049 (Complaint). 3 In December 2016, ShoppersChoice
 filed a motion for judgment on the pleadings, challenging
 claim 11 as patent ineligible. J.A. 1513–14; see 35 U.S.C.
 § 101. In February 2017, following discovery, the parties
 filed a joint claim construction statement, in which ECT
 specified that each of the disputed terms in claim 11 should
 be given its “[o]rdinary and customary meaning.”
 J.A. 1582–88; see J.A. 1581–90 (Joint Claim Construction
 Statement). ShoppersChoice then moved to join a patent-
 eligibility hearing set in a parallel lawsuit, also before the
 District Court, in which ECT alleged claim 11 infringement
 against other companies. J.A. 1047–48. The District Court
 granted the motion and conducted a consolidated patent-
 eligibility hearing regarding claim 11. See Motion Hearing,
 Elec. Commc’n Techs., LLC v. ShoppersChoice.com, LLC,
 No. 9:16-cv-81677-KAM (S.D. Fla. Apr. 7, 2017), ECF
 No. 59. 4




     2   ECT’s previous name was Eclipse IP, LLC; the en-
 tity changed names in 2015. J.A. 255. Eclipse IP was listed
 as the applicant for the ’261 patent, but the patent was as-
 signed to ECT following the name change. J.A. 35, 520.
      3  While ECT initially claimed that ShoppersChoice
 infringed claims from three patents, it subsequently
 amended its Complaint to assert infringement only of
 claim 11 of the ’261 patent. J.A. 1626.
      4  These parallel proceedings before the District
 Court include: Elec. Commc’n Techs., LLC v. Minted, LLC,
 No. 16-cv-81669-KAM; Elec. Commc’n Techs., LLC v.
 Lakeshore Equip. Co., No. 16-cv-81672-KAM; and Elec.
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      Following the hearing, the District Court granted
 ShoppersChoice’s motion for a judgment on the pleadings
 and invalidated independent claim 11 of the ’261 patent.
 J.A 33–34; see J.A. 1581–90. The District Court conducted
 the two-step analysis set forth in Alice Corp. Party Ltd. v.
 CLS Bank International, 573 U.S. 208 (2014). J.A. 20–33.
 The District Court determined that, under Alice step one,
 “[independent] [c]laim 11 is directed to the abstract idea of
 providing advance notification of the pickup or delivery of
 a[n] [MT].” J.A. 23. Regarding Alice step two, the District
 Court concluded that “the elements of [independent]
 [c]laim 11 do not transform the abstract idea that they re-
 cite into . . . patent-eligible subject matter.” J.A. 27–28.
 Accordingly, the District Court concluded that independent
 claim 11 was directed to patent-ineligible subject matter
 and granted judgment on the pleadings to ShoppersChoice.
 J.A. 33–34. We recently affirmed the District Court, hold-
 ing that “the claim only entails applying longstanding com-
 mercial practices using generic computer components and
 technology.” ShoppersChoice.com, 958 F.3d at 1183.
      Subsequently, ShoppersChoice filed a motion for attor-
 ney fees. See ShoppersChoice.com’s Local Rule 7.3 Motion
 for Attorneys’ Fees (“Motion for Attorney Fees”) at 5, Elec.
 Commc’n Techs., LLC v. ShoppersChoice.com, LLC,
 No. 9:16-cv-81677-KAM (S.D. Fla. Mar. 15, 2019), ECF
 No. 82. In it, ShoppersChoice cited evidence it presented
 to the District Court that ECT sent standardized demand
 letters and filed repeat patent infringement actions for the
 purpose of obtaining low-value “license fees” and forcing
 settlements. Id. at 4–5. Specifically, ShoppersChoice had
 provided the District Court with evidence that, be-
 tween 2011 and 2015, ECT, under its former name Eclipse,
 filed lawsuits against at least 150 defendants, alleging



 Commc’n Techs., LCC v. Pep Boys–Manny, Moe & Jack,
 d/b/a The Pep Boys, No. 16-cv-81676-KAM. See id.
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 infringement of claims in the ’261 patent and in other pa-
 tents in the ’261 patent’s family. Id. at 4. Following attor-
 ney fee briefing, but before the District Court ruled, the
 U.S. District Court for the Central District of California
 (“California District Court”) entered an award of attorney
 fees against ECT in yet another case for conduct related to
 one of ECT’s numerous ’261 patent infringement lawsuits.
 See Kindred Studio Illustration & Design, LLC v. Elec.
 Commc’n Techs., LLC (“True Grit”), Case No. 2:18-cv-
 07661-GJS, 2019 WL 3064112, at *6–9 (C.D. Cal. May 23,
 2019). ShoppersChoice filed a letter of supplemental au-
 thority informing the District Court of the ruling.
 J.A. 2155–56. 5
     A week after the letter was filed, the District Court de-
 nied ShoppersChoice’s motion for the award of attorney
 fees. J.A. 1628; see J.A. 1626–28 (Attorney Fee Order). In
 doing so, the District Court explained that “[u]nder the
 Lanham Act, ‘[t]he court in exceptional cases may award
 reasonable attorney fees to the prevailing party.’”
 J.A. 1627 (quoting 15 U.S.C. § 1117). In “considering the
 totality of the circumstances,” the District Court deter-
 mined the case was not exceptional. J.A. 1627. First, the



     5   Prior to the instant action, ECT filed a lawsuit in
 the California District Court, alleging infringement of
 ECT’s U.S. Patent Nos. 7,064,681 (“the ’681 patent”),
 7,113,110 (“the ’110 patent”), and 7,119,716 (“the ’716 pa-
 tent”) against McKinley Equipment Corporation. See
 Eclipse IP LLC v. McKinley Equip. Corp. (“McKinley”), No.
 SAVC 14-154-GW(AJWx), 2014 WL 4407592, at *1 (C.D.
 Cal. Sept. 4, 2014). The ’681, ’110, and ’716 patents all con-
 tain claims that recite methods for a computer-based noti-
 fication system. See id. The California District Court
 conducted patent eligibility analysis for each asserted
 claim in the ’681, ’110, and ’716 patents and concluded that
 they were patent ineligible. See id. at *7, 9, 11, 12.
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 District Court explained that “the substantive strength of
 the litigating position in this case does not render [it] ‘ex-
 ceptional[,]’” as ECT’s “litigating position was [not] so obvi-
 ously weak[.]” J.A. 1627. The District Court explained
 that, as “[t]here were no binding cases on point that stated
 that automated delivery notification [wa]s an abstract
 idea[,]” “the [District] Court analogized delivery notifica-
 tion to the kinds of conventional business practices that
 have been found to be abstract ideas.” J.A. 1627. “Moreo-
 ver,” the District Court stated that it “had to” analyze
 whether independent claim 11 “was directed to a trans-
 formative application of an abstract idea[,]” suggestive of
 some substantive strength. J.A. 1628. Second, the District
 Court stated that it “[could not] conclude that [ECT] exhib-
 ited the kind of unreasonable behavior that would make
 this case stand apart from others.” J.A. 1628. Accordingly,
 the District Court denied ShoppersChoice’s Motion for At-
 torney Fees. J.A. 1628. ShoppersChoice moved for recon-
 sideration, J.A. 2175–76, which the District Court denied,
 J.A. 1629.
                          DISCUSSION
         I. Standard of Review and Legal Standard
     Pursuant to the Patent Act’s fee-shifting provision, a
 “[district] court in exceptional cases may award reasonable
 attorney fees to the prevailing party.” 35 U.S.C. § 285 (em-
 phasis added). “[A]n ‘exceptional’ case is simply one that
 stands out from others with respect to the substantive
 strength of a party’s litigating position (considering both
 the governing law and the facts of the case) or the unrea-
 sonable manner in which the case was litigated.” Octane
 Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545,
 554 (2014). A “[d]istrict court[] may determine whether a
 case is ‘exceptional’ in the case-by-case exercise of [its] dis-
 cretion, considering the totality of the circumstances.” Id.
 While “there is no precise rule or formula” for considering
 the totality of the circumstances, id. (internal quotation
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 ELECTRONIC COMMUNICATION    v. SHOPPERSCHOICE.COM, LLC     7



 marks and alteration omitted) (citing Fogerty v. Fantasy,
 Inc., 510 U.S. 517, 534 (1994)), a district court may weigh
 such factors as “frivolousness, motivation, objective unrea-
 sonableness (both in the factual and legal components of
 the case)[,] and the need in particular circumstances to ad-
 vance considerations of compensation and deterrence[,]” id.
 at 554 n.6 (internal quotation marks omitted) (citing
 Fogerty, 510 U.S. at 534 n.19). Section 285 “imposes no
 specific evidentiary burden,” and is instead “a simple dis-
 cretionary inquiry[.]” Id. at 557.
      We review a district court’s denial or grant of attorney
 fees under § 285 for abuse of discretion. See Highmark Inc.
 v. Allcare Health Mgmt. Sys., Inc., 572 U.S. 559, 561 (2014);
 see also ThermoLife Int’l LLC v. GNC Corp., 922 F.3d 1347,
 1356 (Fed. Cir. 2019) (“We review a district court’s grant of
 attorney[] fees under § 285 for abuse of discretion.”). An
 abuse of discretion occurs where a district court makes “a
 clear error of judgment in weighing relevant factors or in
 basing its decision on an error of law or on clearly errone-
 ous factual findings.” Bayer CropScience AG v. Dow Agro-
 Sciences LLC, 851 F.3d 1302, 1306 (Fed. Cir. 2017)
 (internal quotation marks and citation omitted). “A factual
 finding is clearly erroneous if, despite some supporting ev-
 idence, we are left with the definite and firm conviction
 that a mistake has been made.” Insite Vision Inc. v.
 Sandoz, Inc., 783 F.3d 853, 858 (Fed. Cir. 2015) (internal
 quotation marks and citation omitted). A district court
 must “provide a concise but clear explanation of its reasons
 for the fee award.” Hensley v. Eckerhart, 461 U.S. 424, 437
 (1983); see In re Rembrandt Techs. LP Patent Litig., 899
 F.3d 1254, 1276 (Fed. Cir. 2018).
  II. The District Court’s Exceptional Case Determination
             Constitutes an Abuse of Discretion
     The District Court denied ShoppersChoice’s Motion for
 Attorney Fees, by finding the case not “exceptional” under
 the Lanham Act. J.A. 1627–28 (citing 15 U.S.C. § 1117).
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 8   ELECTRONIC COMMUNICATION     v. SHOPPERSCHOICE.COM, LLC



 ShoppersChoice contends that the District Court abused
 its discretion in weighing relevant factors, Appellant’s
 Br. 31, and by applying the incorrect attorney fee statute,
 id. at 40. We agree with ShoppersChoice.
  A. The District Court Failed to Address ECT’s Manner of
                         Litigation
     The District Court clearly erred by failing to address
 ECT’s manner of litigation and the broader context of
 ECT’s lawsuit against ShoppersChoice. See generally
 J.A. 1626–28. These are relevant considerations. See SFA
 Sys., LLC v. Newegg Inc., 793 F.3d 1344, 1350 (Fed.
 Cir. 2017) (“[A] pattern of litigation abuses characterized
 by the repeated filing of patent infringement actions for the
 sole purpose of forcing settlements, with no intention of
 testing the merits of one’s claims, is relevant to a district
 court’s exceptional case determination under § 285.”). Be-
 fore the District Court was evidence that ECT sent stand-
 ardized demand letters and filed repeat patent
 infringement actions to obtain low-value “license fees” and
 forcing settlements. See Motion for Attorney Fees at 5. For
 example, ShoppersChoice provided the District Court with
 evidence that, between 2011 and 2015, ECT, under its for-
 mer name Eclipse, filed lawsuits against at least 150 de-
 fendants, alleging infringement of claims in the ’261 patent
 and in other patents in the ’261 patent’s family. Id. at 4.
 This number does not reflect the additional pre-litigation
 demands made by ECT. See generally id. ECT’s demand
 for a low-value settlement—ranging from $15,000 to
 $30,000—and subsequent steps—such as failure to proceed
 in litigation past claim construction hearings—indicates
 the use of litigation to achieve a quick settlement with no
 intention of testing the strength of the patent or its allega-
 tions of infringement. See id. at 4–6. Not only did Shop-
 persChoice provide the District Court with a list of other
 court proceedings involving ECT and its demand letters in-
 volving claim 11, id. at 5, ShoppersChoice filed the True
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 ELECTRONIC COMMUNICATION     v. SHOPPERSCHOICE.COM, LLC     9



 Grit opinion with the District Court prior to its attorney fee
 determination, J.A. 2155–56.
      Indeed, the True Grit opinion reveals problems with
 the District Court’s analysis. The opinion provided a de-
 tailed account of ECT’s practice of seeking nuisance-value
 license fees. True Grit, 2019 WL 3064112, at *8–9. In the
 decision, the California District Court concluded that
 awarding attorney fees against ECT was appropriate, ei-
 ther “consider[ing] only the litigation history of ECT (as
 both ECT and Eclipse IP) or the entire history of the enti-
 ties that True Grit has demonstrated are related (including
 Shipping & Transit[, LLC (‘S&T’)]) the [California District]
 Court can discern a clear pattern of serial filings, and also
 several (and presumably many more) instances of threats
 of litigation, intended only to obtain quick settlements[.]”
 Id. at *9. In reviewing ECT’s actions, the California Dis-
 trict Court explained that “ECT’s immediate demand for a
 low[-]value settlement, apparent willingness to reduce that
 amount to avoid any challenge to its patent, and immediate
 provision of a [covenant not to sue] to True Grit once the
 declaratory judgment action was filed demonstrate ECT’s
 ‘in terrorem’ tactics—threatening litigation in hopes of a
 quick settlement with no intention of ever testing either
 the strength of its patent or its allegations of infringe-
 ment.” Id. Moreover, the California District Court took
 judicial notice of “yet another litigious entity,” S&T, “seek-
 ing nuisance value patent ‘rents’ that is helmed by many of
 the same individuals that control ECT[.]” Id. at *5. It ex-
 plained that “[a]fter extracting nuisance value rents in
 many filed cases—and more than likely additional pre-liti-
 gation demand situations—[S&T] finally stopped sending
 demand letters and filing lawsuits after several federal
 courts” awarded attorney fees. Id. The California District
 Court stated that S&T then “filed for bankruptcy in an ap-
 parent bid to avoid paying attorney[] fees or other sanc-
 tions.” Id. The California District Court highlighted that
 “ECT [does not] affirmatively state—in the [California
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 10 ELECTRONIC COMMUNICATION v. SHOPPERSCHOICE.COM, LLC



 District] Court’s view, because it cannot while remaining
 in compliance with [Federal Rule of Civil Procedure]
 Rule 11 and ethical rules—that the same group of people
 do not control the actions of each of these rent-seeking shell
 holding companies.” Id. Moreover, the California District
 Court explained that ECT did not contest True Grit’s as-
 sertion that, of the 875 times ECT has asserted the ’261
 patent and other patents in the patent family, ECT has
 never “tak[en] a single case to a merits determination.” Id.
 at *6. 6




     6    Additionally, before the District Court was evi-
 dence that ECT’s conduct regarding the ’261 patent was
 not an isolated practice. ShoppersChoice presented evi-
 dence that ECT was managed by Peter Sirianni and had
 employed Edward Trumbull as a licensing agent. See Mo-
 tion for Attorney Fees at 5. ShoppersChoice asserted that,
 prior to and concurrent with running Eclipse and ECT,
 Mr. Sirianni and Mr. Trumbull were associated with S&T,
 which has been widely recognized as “one of the most pro-
 lific” non-practicing entity plaintiffs in the United States.
 Id. at 5–6. ShoppersChoice also provided evidence that, at
 its peak, S&T had filed over five hundred lawsuits involv-
 ing patent infringement and related claims, and that the
 pervasive litigation only stopped after several federal
 courts granted attorney fees against S&T. Id. at 5; see, e.g.,
 Shipping & Transit, LLC v. 1A Auto, Inc., 283
 F.Supp.3d 1290, 1299 (S.D. Fla. 2017); Shipping & Transit,
 LLC v. LensDiscounters.com, No. 16-80980-Civ-Rosen-
 berg/Brannon, 2017 WL 5434581, at *7–8 (S.D. Fla. July
 11, 2017); Shipping & Transit, LLC v. Hall Enterprises, No.
 16-cv-06535-AG-AFM, 2017 WL 3485782, at *8 (C.D. Cal.
 July 5, 2017). Following these decisions, S&T filed for
 bankruptcy. Chapter 7 Voluntary Petition at 1, In re Ship-
 ping & Transit, LLC, No. 9:18-bk-20968-MAM (Bankr. S.D.
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     Despite the arguments and evidence presented by
 ShoppersChoice before the District Court regarding ECT’s
 manner of litigation, including the True Grit opinion, the
 District Court only briefly addressed ECT’s litigation con-
 duct, explaining that it “[could not] conclude that [ECT] ex-
 hibited the kind of unreasonable behavior that would make
 this case stand apart from others” and that it was not the
 “‘rare case’” that would warrant an exceptional determina-
 tion. J.A. 1628 (quoting Octane Fitness, 572 U.S. at 555).
 There was no mention of the manner in which ECT liti-
 gated the case or its broader litigation conduct. J.A. 1626–
 28. Such conduct is a relevant consideration. See Roth-
 schild Connected Devices Innovations, LLC v. Guardian
 Prot. Servs., Inc., 858 F.3d 1383, 1390 (Fed. Cir. 2017) (“[I]n
 the absence of evidence demonstrating that [ECT] engaged
 in reasonable conduct before the District Court, the undis-
 puted evidence regarding [ECT’s] vexatious litigation war-
 rants an affirmative exceptional case finding here.”).
     “While [a] district court need not reveal its assessment
 of every consideration of § 285 motions, it must actually
 assess the totality of the circumstances.” AdjustaCam,
 LLC v. Newegg, Inc., 861 F.3d 1353, 1360 (Fed. Cir. 2017).
 By not addressing the “adequate evidence of an abusive
 pattern” of ECT’s litigation, Newegg, 793 F.3d at 1352, the
 District Court failed to conduct an adequate inquiry and so
 abused its discretion, see Rothschild, 858 F.3d at 1388 (“A
 district court abuses its discretion when, as here, it fails to
 conduct an adequate inquiry.” (internal quotation marks,
 brackets, and citation omitted)); see also Octane Fitness,
 572 U.S. at 554, 554 n.6 (stating that, while “there is no
 precise rule or formula” in considering the totality of cir-
 cumstances, the district court may weigh, inter alia, “the
 need in particular circumstances to advance considerations


 Fla. Sept. 6, 2018), ECF No. 1; see Motion for Attorney Fees
 at 5–6.
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 of compensation and deterrence” (internal quotation marks
 omitted) (citing Fogerty, 510 U.S. at 534 n.19)); Newegg,
 793 F.3d at 1350 (“[A] pattern of litigation abuses charac-
 terized by the repeated filing of patent infringement ac-
 tions for the sole purpose of forcing settlements, with no
 intention of testing the merits of one’s claims, is relevant
 to a district court’s exceptional case determination under
 § 285.”).
   B. The District Court Failed to Sufficiently Address the
              Objective Weakness of Claim 11
      The District Court clearly erred by failing to consider
 the objective unreasonableness of ECT’s alleging infringe-
 ment of claim 11 against ShoppersChoice. The Attorney
 Fee Order did not reference, much less reconcile or account
 for, the District Court’s determination on the objective un-
 reasonableness of the claims against ShoppersChoice with
 the conflicting conclusions reached in True Grit or McKin-
 ley. J.A. 1626–28; see Octane Fitness, 572 U.S. at 554 n.6
 (explaining that a district court, in analyzing the totality of
 circumstances, may weigh, inter alia, the “objective unrea-
 sonableness (both in the factual and legal components of
 the case)”). In True Grit, the California District Court con-
 cluded that “no reasonable patent litigant would have be-
 lieved that [c]laim 11 of the ’261 patent”—the same claim
 at issue in the instant case—“was viable[.]”             2019
 WL 3064112, at *4.
      In McKinley, which was decided two years before ECT
 filed its Complaint against ShoppersChoice, the California
 District Court invalidated claims of patents in the ’261 pa-
 tent’s family as patent ineligible under § 101, finding the
 claims “directed to the abstract idea of asking people, based
 on their location, to go places[,]” and implemented with
 only “‘generic computer[s]’” that did not transform the
 claims into patent eligible subject matter.              2014
 WL 4407592, at *11 (quoting Alice, 573 U.S. at 223). In
 True Grit, the California District Court explained that all
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 ELECTRONIC COMMUNICATION     v. SHOPPERSCHOICE.COM, LLC 13



 of the asserted claims in McKinley came from patents that
 share the same specification as the ’261 patent, and that
 “[c]laim 11 of the ’261 [p]atent suffers from the same type
 of obvious defect” as the asserted claims in McKinley. 2019
 WL 3064112, at *4. While ShoppersChoice stops short of
 claiming that either McKinley or True Grit bind the Dis-
 trict Court, see generally Appellant’s Br., the absence in the
 Attorney Fee Order of any reference to either relevant case,
 or any allusion to their opposing conclusions, is problem-
 atic, J.A. 1626–28; see AdjustaCam, 861 F.3d at 1360 (ex-
 plaining that “[t]he record developed over [time] points to
 this case as standing out from others with respect to the
 substantive strength of [the] litigating position[,]” as the
 “suit became baseless after the district court’s Markman
 order” as shown by “the evidence proffered by” the plain-
 tiff). Accordingly, we conclude that the District Court
 abused its discretion in weighing relevant factors in its ex-
 ceptional case analysis.
                        C. Conclusion
     For the foregoing reasons, we vacate the District
 Court’s Attorney Fee Order and remand for further pro-
 ceedings. In assessing the totality of the circumstances on
 remand, the District Court should consider, in a manner
 consistent with this opinion, ECT’s manner of litigation
 and the objective unreasonableness of ECT’s infringement
 claims.
     We further note that the District Court applied the in-
 correct attorney fee statute. Specifically, the District Court
 applied 15 U.S.C. § 1117, J.A. 1267, which provides for the
 “award [of] reasonable attorney fees to the prevailing
 party” in “exceptional cases” concerning trademark viola-
 tions, 15 U.S.C. § 1117(a). Instead, the District Court
 should have applied 35 U.S.C. § 285, as the lawsuit in-
 volved the sole claim of patent infringement. J.A. 1 (find-
 ing independent claim 11 patent ineligible following a
 claim of infringement); see 35 U.S.C. § 285 (stating that, in
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 the context of patent infringement remedies, “[t]he court in
 exceptional cases may award reasonable attorney fees to
 the prevailing party”). Although we acknowledge that the
 District Court ultimately applied the proper standard,
 J.A. 1627, 1628 (citing Tobinick v. Novella, 884 F.3d 1110,
 1118 (11th Cir. 2018) (concluding that the exceptional case
 standard pertaining to 35 U.S.C. § 285 applies to 15 U.S.C.
 § 1117)), on remand the District Court should apply § 285
 and relevant precedent.
      Accordingly, the Attorney Fee Order of the U.S. Dis-
 trict Court for the Southern District of Florida is
                VACATED AND REMANDED
                           COSTS
     Costs to ShoppersChoice.
