Highmark, Inc. v. Allcare Health Management Systems, Inc.

REYNA, Circuit Judge,

dissenting, with whom RADER, Chief Judge, joins in parts I — II, and with whom MOORE, O’MALLEY and WALLACH, Circuit Judges, join in full.

I dissent from the court’s refusal to consider en banc the proper standard of *1363review governing exceptional case determinations under 35 U.S.C. § 285. The majority decision is incorrect in presuming it appropriate for us to invade the fact finding province of the lower court.1 Sitting as a three judge panel, the Highmark majority shifts our standard of review from the deferential clear error standard to de novo review when assessing…