§ 284 and § 285 may be invoked are not identical. For example, attorney misconduct or other aggravation of the litigation process may weigh heavily with respect to attorney fees, but not for enhancement of damages. Id. (internal citations omitted). Therefore, the trial court abused its discretion by failing to explain why attorneys’ fees were unwarranted and the issue is remanded for a proper determination. E. Post-Trial Accounting Finally, WhitServe appeals the denial of a post-trial accounting. “[W]hen damages are not found by a jury, the court shall assess them.” 35 U.S.C'. § 284 (emphasis added). District courts have discretion to award damages for periods of infringement not considered by the jury. See Fresenius USA, Inc. v. Baxter Int’l, Inc., 582 F.3d 1288, 1303 (Fed.Cir.2009) (<HOLDING>); Finjan, 626 F.3d at 1212-13 (explaining that
holding the order is only reviewable if actually considered by the district court holding that a district court may not impose a sentencing enhancement based on conduct of which the jury acquitted the defendant holding that it was a due process violation where the judge in issuing the death sentence against the recommendation of the jury considered a confidential presentencing report that was not considered by the jury holding that the trial court failed to exercise its discretion by stating that it did not have the ability to present the transcript to the jury holding that the district court was within its discretion to impose a royalty on postverdict sales not considered by the jury in order to fully compensate the patentee