Disavowal of the Full Scope of a Claim Term Requires the Patentee to Demonstrate an Intent to Deviate from the Ordinary and Accustomed Meaning of the Claim Term
In Intellectual Ventures I LLC v. T-Mobile USA, Inc., Appeal Nos. 2017-2434, 2017-2435, the Federal Circuit held that the patentee did not narrow the scope of the plain language claim construction in the prosecution history because the patentee did not clearly and explicitly disclaim any claim scope.
The patent-in-suit describes an “application-aware resource allocator” that allocates bandwidth resources to transmit information from software applications over a packet-switched network. The patent describes the application-aware resource allocator with reference to the seven-layer Open Systems Interface networking protocol stack standard, which includes a “physical layer” at layer 1, a “data link layer” at layer 2, a “network layer” at layer 3, a “transport layer” at layer 4, and an “application layer” at layer 7. The parties disputed the construction of the “application-aware resource allocator.” Intellectual Ventures’ construction required that the resource allocator “allocate resources based on application type.” Under this construction, the resource allocator could discern the application type using information obtained from any of layers 3, 4, or 7. T-Mobile’s competing construction required that the resource allocator “ha[ve] knowledge of the type of data application” and allocate resources using information obtained from layer 7. The district court adopted T-Mobile’s construction, pointing to patentee’s statements in the prosecution history distinguishing the prior art based on the fact that the invention is “aware of layer 7 application information” and that the resource allocator must “be able to take into account, when allocating bandwidth, information at . . . layer 7.” Based on this claim construction decision, the district court granted summary judgment for T-Mobile. Intellectual Ventures appealed.
The Federal Circuit held that the claim construction was erroneous and construed “application-aware resource allocator” to permit allocation based on application type, which can be discerned using information from any of layers 3, 4, or 7, as Intellectual Ventures had initially argued. The Federal Circuit found that the plain language of the claims, and some described embodiments, did not require use of information from layer 7. It found that the prosecution history required awareness of applications running at layer 7, but did not require the resource allocator to use data obtained from application layer 7 when allocating resources. Because the district court’s grant of summary judgment of non-infringement resulted from a contrary construction, the Federal Circuit vacated-in-part and remanded.
IPR Petitioner’s Initial Identification of the Real Parties in Interest Is to Be Accepted Unless and Until Disputed by a Patent Owner
In Worlds Inc. v. Bungie, Inc., Appeal Nos. 2017-1481, -1546, -1583, the Federal Circuit held that the PTAB may initially accept an IPR petitioner’s identification of real-parties-in-interest, but if a patent owner produces some evidence disputing the identification, the burden is on the petitioner to demonstrate that the correct real-parties-in-interest were identified.
During district court litigation, Plaintiff Worlds informed Defendant Activision that it intended to add an additional accused product: a video game published by Activision but developed by non-party Bungie. Bungie responded to this accusation by filing IPR petitions against all five patents at issue in the district court case. In its petitions, Bungie represented that it was the sole real-party-in-interest.
Worlds moved for discovery regarding the real-party-in-interest, citing an agreement that allowed Activision to approve legal reviews conducted by Bungie, included indemnification provisions, and allowed Activision to financially support Bungie’s video game development. The Board denied the motion for discovery and, in both the institution and final written decisions, determined that Worlds had not demonstrated that Activision was an unnamed real-party-in-interest.
Worlds appealed, arguing that Activision should have been named as a real-party-in-interest, and the IPR petitions were time-barred because World had served its complaint on Activitision more than a year before these petitions were filed. Worlds also argued that the board should not have placed the ultimate burden of persuasion on Worlds.
The Federal Circuit agreed with Worlds. First, it reiterated that the petitioner bears the ultimate burden of persuasion to show that a petition is not time-barred based on a complaint served on a real-party-in-interest. Next, the Federal Circuit examined and rejected the PTAB’s practice of treating the petitioner’s identification of real-parties-in-interest as a rebuttable presumption, shifting the burden to patent owner to prove otherwise. The Federal Circuit held that the PTAB may accept the petitioner’s identification of the real-parties-in-interest unless and until the patent owner decides to dispute its accuracy. To do so, the patent owner must provide some evidence to show that a particular third party should be named a real-party-in-interest. Using this burden-shifting framework, the Federal Circuit held that Worlds had provided sufficient evidence to dispute Bungie’s initial identification. However, it was unclear whether the Board placed the burden of persuasion on Worlds or Bungie, so the Federal Circuit vacated and remanded the IPRs.
“Blocking Patents” May Discount the Significance of Evidence Supporting Secondary Considerations of Non-Obviousness
In Acorda Therapeutics, Inc. v. Roxane Laboratories, Inc., Appeal Nos. 2017-2078, 2017-2134, the Federal Circuit held that four asserted pharmaceutical patents related to Ampyra® were obvious. Evidence of secondary considerations of nonobviousness such as long-felt need carried diminished weight because there was a blocking patent that may have deterred investment in the “blocked” invention.
Acorda sued several ANDA filers for patent infringement of Orange Book patents directed to methods of using the drug sold as Ampyra®. Acorda owned four asserted patents (“the Acorda patents”) and held an exclusive license to an additional broader asserted patent (“the blocking patent”). The defendants challenged the validity of each asserted claim. The district court held that the blocking patent was valid, but also held that the Acorda patents were obvious over the prior art.
The Federal Circuit affirmed, finding no clear error in the district court’s holding that there was motivation to combine the prior art references with a reasonable expectation of success. The Acorda patents were directed to achieving an active ingredient concentration that was inherent in the prior art. Acorda had also argued the district court improperly applied a categorical rule that a blocking patent defeats the significance of objective indicia of nonobviousness, such as long-felt need. The Federal Circuit disagreed and endorsed the holding below that because a blocking patent may diminish commercial exploitation, its existence reduces the significance of evidence supporting secondary considerations of nonobviousness.
Judge Newman dissented and discussed the impact of a blocking patent on obviousness analysis. She stated that because there is a statutory safe harbor for research on patented subject matter, a blocking patent did not deter research in this case. She argued that, had the court’s approach to blocking patents been in effect when Acorda took up its research on Ampyra®, after decades of failures by others, it is questionable whether this new treatment would have been discovered. Judge Newman’s dissent concluded that the real loser is the afflicted public.
Objective Indicia of Nonobviousness Must be Considered Even Where All Ingredients in a Formulation Were Known
In Orexo AB, Orexo US Inc., v. Actavis Elizabeth LLC, Appeal No. 2017-1333, the Federal Circuit held that objective indicia of nonobviousness must be considered even where all the ingredients in a formulation were generally known.
Actavis filed an Abbreviated New Drug Application for a generic version of a drug sold by Orexo. Orexo sued Actavis for patent infringement under the Hatch-Waxman Act. At the district court, Actavis argued that Orexo’s asserted patent was invalid as obvious in view of prior art references disclosing the components of the claimed formulation. The district court agreed with Activis, finding the patent invalid in spite of Orexo’s arguments that the prior art did not disclose the unexpectedly enhanced bioavailability associated with the claimed formulation. Orexo appealed.
The Federal Circuit reversed the district court’s finding of invalidity, holding that the district court should not have discounted the objective indicia of nonobviousness, including the enhanced bioavailability of the claimed formulation. The Federal Circuit explained that “[T]his court has emphasized that consideration of the objective indicia is part of the whole obviousness analysis, not just an after-thought.” Therefore, the Federal Circuit held that Actavis did not sufficiently establish that the challenged claims were obvious. The court reversed and remanded for further proceedings.
Evidence of Actual Confusion is not Dispositive Concerning Likelihood of Confusion
In In Re: DETROIT ATHLETIC CO., Appeal No. 2017-2361, the Federal Circuit held evidence that the consuming public was not actually confused is relevant, but not dispositive, concerning likelihood of confusion.
The examiner refused registration of the mark DETROIT ATHLETIC CO. for being confusingly similar to DETROIT ATHLETIC CLUB. The Board affirmed, concluding that consumers are likely to be confused because the marks are similar, the goods and services are related, and the channels of trade and consumers overlap. The Board also rejected an affidavit purporting to show a lack of actual confusion.
The Federal Circuit considered the DuPont factors for likelihood of confusion and affirmed. The Federal Circuit held that the TTAB correctly gave less weight to the terminal terms, “Co.” and “Club,” because the terms were not source identifying and both had been disclaimed in their respective applications. The terminal terms are merely descriptive of business forms, and such terms will usually not avoid likelihood of confusion with an otherwise confusingly similar mark. The Federal Circuit also affirmed the TTAB’s determination that the nature of the goods and services, and channels of trade, were substantially similar because both the applicants’ services involved selling clothing. The Federal Circuit rejected the affidavit purporting to show a lack of actual confusion because the standard is likelihood of confusion—“Likelihood of confusion in this context can be established even in the face of evidence suggesting that the consuming public was not actually confused.” The court criticized the affidavit as conclusory and noted that courts should not give too much weight to such evidence in an ex parte proceeding. Thus, the Federal Circuit affirmed.
An Implicit Disclosure Supported by Expert Testimony May Support a Finding of Obviousness
In IXI IP, LLC v. Samsung Electronics Co., Ltd., Appeal No. 2017-1665, the Federal Circuit held that claims may be rejected under 35 § U.S.C. 103 based on implicit disclosures of a prior art reference.
Samsung and Apple filed an IPR petition challenging claims of IXI’s patent relating to hot-spot technology implemented in a cellphone. The PTAB held that the challenged claims were obvious, concluding that a person skilled in the art would read the primary prior art reference as implicitly describing the claimed hot-spot technology implemented in a cellphone. IXI appealed.
The Federal Circuit affirmed. The Federal Circuit acknowledged that the primary prior art reference did not expressly disclose the claimed configuration. Nevertheless, in view of expert testimony, the Federal Circuit concluded that the Board’s determination that a person skilled in the art would read the main prior art reference as implicitly describing the claimed configuration was reasonable and supported by substantial evidence. Accordingly, the Federal Circuit affirmed the District Court’s findings.
Federal Circuit Finds No Interference-In-Fact Between CRISPR-Cas9 Patents
In Regents Of The University Of California v. Broad Institute, Inc., Appeal No. 2017-1907, the Federal Circuit affirmed that there was no interference-in-fact between Broad’s patents covering use of CRISPR-Cas9 technology in eukaryotic cells and the UC’s patent application to more general use of this technology.
The PTAB instituted an interference proceeding between Appellants’ (collectively “UC”) ’859 patent application and the claims of twelve patents and one application owned by Appellees (collectively “Broad”). All parties’ applications and patents relate to the use of CRISPR-Cas9 technology. The UC claims did not refer to the technology’s use in a eukaryotic cell environment, while Broad’s claims were limited to such environments. The Board applied a two-way test to determine whether the one set of claims rendered obvious the other claim set. The test mirrors that of a typical obviousness analysis and asks whether a person of ordinary skill in the art would have been motivated to modify the claims with a reasonable expectation of success. The Board determined that there was no interference-in-fact because a person of ordinary skill in the art would not have had a reasonable expectation of success in applying the CRISPR-Cas9 technology to eukaryotic environments.
The Federal Circuit affirmed. Here there was substantial evidence showing that a person of ordinary skill would not have had a reasonable expectation of success in applying CRISPR-Cas9 in a eukaryotic cell. Such evidence included testimony from Broad’s expert and UC’s expert, as well statements by the UC inventors showing a lack of reasonable expectation of success in implementing the CRISPR-Cas9 system in a eukaryotic cell and noting the significance of Broad’s success. There was also substantial evidence showing that successful implementations of similar gene editing systems in eukaryotes were unpredictable. The Court acknowledged that there was evidence to support UC’s position of a reasonable expectation of success, including near simultaneous invention by six research groups independently applying CRISPR-Cas9 in eukaryotic cells. But the appellate court’s role is to evaluate whether the Board’s decision was supported by substantial evidence, not to re-weigh the countervailing evidence.
Obviousness of Method Claims May Require Stronger Motivation to Combine than Related Apparatus Claims
In ParkerVision, Inc. v. Qualcomm Inc., Appeal Nos. 2017-2012, -2013, -2014, -2074, the Federal Circuit held that while obviousness of apparatus claims “capable of” a particular function may be shown by identifying an apparatus in the prior art with that capability, obviousness of related method claims requires a motivation to actually use the apparatus for the claimed function.
Qualcomm filed petitions for inter partes review challenging the patentability of both apparatus and method claims of ParkerVision’s ’940 Patent. The ’940 Patent describes a system and method wherein low-frequency electromagnetic signals are up-converted to higher-frequency signals by various means. The Board held certain apparatus claims of the ’940 Patent unpatentable as obvious over the prior art. However, Qualcomm failed to prove by a preponderance of evidence that certain method claims are unpatentable.
ParkerVision appealed and Qualcomm cross-appealed. The dispute between the parties concerned “plurality of harmonics” limitations present in both apparatus and method claims.
The Federal Circuit affirmed the Board’s decision. As to the apparatus claims, the Federal Circuit reasoned that “a prior art reference may anticipate or render obvious an apparatus claim—depending on the claim language—if the reference discloses an apparatus that is reasonably capable of operating so as to meet the claim limitations, even if it does not meet the claim limitations in all modes of operation.” The Federal Circuit noted a distinction between claims reciting capability and those reciting configuration, holding that here the claims fall squarely on the “capable of” side of the line. Thus, because it was undisputed that the prior art apparatus is capable of producing a “plurality of harmonics,” the Federal Circuit held that substantial evidence supported the Board’s determination that the apparatus claims were unpatentable. As to the method claims, the Federal Circuit explained that more was required. Because Qualcomm failed to present evidence and argument that a person of ordinary skill in the art would have been motivated to operate the prior art apparatus in a manner that satisfied the “plurality of harmonics” limitation, Qualcomm failed to meet its burden of proof as to the challenged method claims.
Presumption of Obviousness and Burden-Shifting Framework Applies in the IPR Context
In E.I. DuPont De Nemours & Co. v. Synvina C.V., Appeal No. 2017-1977, the Federal Circuit reaffirmed that when ranges identified in a claimed composition overlap with ranges disclosed in the prior art, obviousness is presumed, and the burden shifts to the patentee to rebut the presumption. The Federal Circuit also held that this burden-shifting framework is applicable for both district court cases and inter partes review proceedings.
DuPont petitioned for inter partes review of a patent owned by Synvina. The patent is directed to a method of oxidizing 5-hydroxymethylfurfural (“HMF”) or an HMF derivative to form 2,5-furan dicarboxylic acid (“FDCA”), a building block for bio-based chemicals. The Board instituted review on obviousness grounds.
The Board found the claims were not obvious even though the prior art references disclosed oxidizing HMF to FDCA under conditions overlapping with those disclosed in the patent at issue. None of the references expressly taught the particular combination of claimed reaction conditions. The Board rejected DuPont’s argument that the burden-shifting framework should be applied in the context of overlapping prior art ranges. The Board interpreted the recent Federal Circuit decisions in In re Magnum Oil Tools International, Ltd., 829 F.3d 1364, 1375 (Fed. Cir. 2016) and Dynamic Drinkware, LLC v. National Graphics, Inc. 800F.3d 1375, 1378 (Fed. Cir. 2015) as prohibiting any burden-shifting framework from applying in an IPR. However, these decisions did not discuss the case law concerning overlapping ranges and the procedural framework relating to them. DuPont appealed the Board’s decision.
The Federal Circuit reversed and found the claims obvious. The Board should have applied the burden-shifting framework to analyze obviousness, because this framework applies to IPR proceedings and district court cases, as well as PTO examination. The Federal Circuit found that the presumption of obviousness applied in this case because the claimed composition ranges fell within the ranges disclosed in the prior art. The patentee failed to rebut this presumption by showing unexpected results, that the prior art taught away, that the parameter was not recognized as “result-effective,” or that the disclosure of the broad ranges did not invite routine optimization.
District Courts Have Jurisdiction To Hear APA Challenges to the PTO’s Denial of a Petition for Rulemaking
In Hyatt v. Pato, Appeal No. 2017-1722, the Federal Circuit held that: (1) district courts have jurisdiction to hear challenges under the Administrative Procedure Act to the PTO’s denial of a petition for rulemaking; and (2) an examiner’s ability to reopen prosecution under a new ground does not deprive applicants of their right to maintain an appeal.
Hyatt filed a petition to the PTO to repeal MPEP § 1207.4 arguing, among other things, that an examiner’s ability to reopen prosecution to enter a new ground of rejection conflicted with 35 U.S.C. § 6(b)(1)’s creation of a right for applicants to appeal rejections. After the PTO denied the petition and a subsequent request for reconsideration, Hyatt filed suit challenging denial of the petition in Nevada district court on the same grounds. The district court granted summary judgment to the PTO, determining that it lacked subject matter jurisdiction and reasoning that an order invalidating MPEP § 1207.4 could affect the exclusive jurisdiction Congress granted the Eastern Virginia district court and Federal Circuit to review final PTAB application decisions.
The Federal Circuit reversed the district court’s dismissal for lack of subject matter jurisdiction, but affirmed the grant of summary judgment on other grounds. First, the Federal Circuit found that the exclusive jurisdiction to review final PTAB application decisions did not displace a district court’s jurisdiction over APA challenges to a PTO’s denial of a petition for rulemaking because the “process for petitioning the PTO for rulemaking is completely separate from the patent application examination process that culminates in final PTAB decisions.”
Next, the Federal Circuit addressed the timeliness of Hyatt’s challenges. The first two challenges—a procedural challenge based on failure to provide public notice and an opportunity to comment and a policy-based challenge based on an alleged conflict between MPEP § 1207.04 and 37 C.F.R. §41.39—accrued at the time MPEP § 1207.04 was adopted and were both time-barred. Hyatt’s third challenge, a substantive challenge alleging that MPEP § 1207.04 violates 35 U.S.C. § 6(b)(1), accrued when his petition to the PTO was denied and was, therefore, not time barred.
The third challenge, however, failed on the merits. The Federal Circuit held that allowing examiners to reopen prosecution does not deprive applicants of their right to appeal final examiner rejections because it does not circumvent PTAB review. The Federal Circuit further explained that nothing in 35 U.S.C. § 6(b)(1) suggests the PTO cannot impose conditions on the PTAB’s ability to reach the merits of an appeal or delay the appeal. Accordingly, the Federal Circuit remanded for the district court to enter judgment in favor of the PTO.
Section 315(b) Time Bar Applies to IPR Petitions Even When Complaint Alleging Patent Infringement Is Involuntarily Dismissed
In Bennett Regulator Guards, Inc. v. Atlanta Gas Light Company, Appeal Nos. 2017-1555, 2017-1626, the Federal Circuit held that 35 U.S.C. § 315(b), which prohibits the Board from instituting an IPR based on a petition filed more than one year after the date on which the petitioner is served with a complaint, is fully applicable to complaints that are involuntarily dismissed by the court.
In 2012, Bennett served Atlanta Gas with a complaint alleging infringement of a patent. Atlanta Gas successfully moved to dismiss the complaint. Nearly three years later, in 2015, Atlanta Gas filed an IPR to challenge the validity of the Bennett patent. Bennett objected, arguing that § 315(b) prohibits institution if a petition is filed more than one year after the petitioner is served with a complaint. The Board concluded that the district court’s dismissal of the complaint without prejudice nullified service, and proceeded to institute review of all claims. The Board later held that all claims of the patent were unpatentable. The Board also granted sanctions against Atlanta Gas for failing to disclose the change of corporate parentage.
The Federal Circuit vacated the Board’s final written decision and remanded with instructions to dismiss the IPR. The Federal Circuit first noted that serving a complaint alleging infringement unambiguously implicates the § 315(b) time bar. The time bar is unchanged by the subsequent success or failure of the complaint. The Federal Circuit further explained that the statute does not create an exception for involuntarily dismissed complaints, and therefore the Board exceeded its authority when it instituted an IPR more than one year after service of the complaint. With regard to the appeal of sanctions, the Federal Circuit determined the sanctions were non-final, and declined to exercise pendent jurisdiction.
Federal Circuit Reverses Jury Verdict of Infringement, Finding There Was Insufficient Evidence to Show that Claim Limitations Are at Least Sometimes Met by the Accused Product
In Wisconsin Alumni Research Foundation v. Apple, Inc., Appeal No. 2017-2265, 2017-2380, the Federal Circuit reaffirmed that (1) to uphold a jury verdict of infringement, evidence must support an inference that claim limitations are at least sometimes met by the accused product; and (2) when a patent repeatedly and consistently characterizes a claim term in a particular way, the term should be construed consistent with that characterization.
Wisconsin Alumni Research Foundation (“WARF”) sued Apple, alleging that Apple’s processors infringed several claims of WARF’s patent. The district court granted summary judgment to WARF, ruling that the patent was not invalid, and a jury found infringement and awarded damages to WARF. Apple appealed both decisions to the Federal Circuit. The Federal Circuit reversed the jury’s verdict of infringement, but affirmed the district court’s validity ruling.
The claims of WARF’s patent require that the processor predict whether an error that is “associated with the particular . . . instruction” is likely to occur. The Federal Circuit agreed with the district court that the term “particular” should be given its plain and ordinary meaning, requiring a prediction to be associated with a single load instruction. Applying that meaning, the Federal Circuit held that no reasonable juror could have found that Apple’s system makes a prediction “associated with the particular . . . instruction,” because each prediction is likely to be associated with multiple instructions. The Federal Circuit rejected as insufficient WARF’s “sparse” evidence that Apple’s load tags are sometimes associated with only a single load instruction. Thus, the Federal Circuit reversed the jury’s verdict of infringement.
Apple challenged the validity of WARF’s patent using a prior art reference that disclosed making “static” predictions, which do not update over time. While the claims of the patent did not explicitly recite that the predictions must be “dynamic,” or able to update over time, WARF argued that the term “prediction” should be construed to include only dynamic predictions. The Federal Circuit agreed, reasoning that the specification only discussed examples of dynamic prediction, and the broader construction proposed by Apple would improperly expand the scope of the claims beyond anything described in the specification. Thus, the Federal Circuit upheld the district court’s grant of summary judgment that the claims were not invalid.
The Federal Circuit Reverses District Court, Finding Law Firm Not Jointly and Severally Liable for Fees Award Because Patent Law Post-Alice Was Unsettled at Time Suit Was Filed
In Gust, Inc. v. Alphacap Ventures LLC, Appeal No. 2017-2414, the Federal Circuit held that in determining whether to award sanctions under 28 U.S.C. § 1927, the domain of colorable claims is broader when the law is unsettled.
A non-practicing entity AlphaCap, represented by Gutride Safier LLP, sued ten internet crowd-funding companies for infringement of AlphaCap’s patents in the Eastern District of Texas. Nine of the defendants settled for less than $50,000, but Gust contested infringement and validity of AlphaCap’s patents. The case was transferred to the Southern District of New York, and the district court dismissed AlphaCap’s claims, finding the asserted patent claims were invalid under 35 U.S.C. § 101. The district court also awarded fees and costs to Gust under 35 U.S.C. § 285 and 28 U.S.C. § 1927, making Alphacap’s counsel, Gutride, jointly and severally liable for the award of approximately $500,000 of Gust’s attorneys’ fees and costs. The district court found that counsel unreasonably and vexatiously multiplied the proceedings. Gutride appealed.
The Federal Circuit reversed, finding that the district court abused its discretion in awarding fees and costs under § 1927. In the Second Circuit, an award under § 1927 requires that: (1) the claims were entirely without color; and (2) the claims were brought in bad faith. First, the Federal Circuit found that the district court abused its discretion in holding that Gutride’s patent eligibility position lacked “color.” The Federal Circuit acknowledged that the infringement suit was filed only seven months after the Supreme Court decided Alice and that several Federal Circuit cases recognized the uncertainty in the application of Alice during that period. The Federal Circuit stated that the domain of colorable arguments is broader when the law is unsettled and emphasized that it is important to allow attorneys the latitude necessary to challenge and solidify the legal rules without the chilling effect of direct economic sanctions.
Next, the Federal Circuit addressed the district court’s conclusion that Gutride’s actions throughout the litigation constituted bad faith. The district court’s bad faith determination was based on its findings that Gutride: (1) knew AlphaCap’s patents were invalid, (2) filed the lawsuit expecting to obtain quick settlements, (3) chose a venue that was not convenient and then opposed a motion to transfer venue and (4) failed to end the case through settlement. The Federal Circuit found that the district court improperly relied on counsel’s statement during settlement discussions that the case “is not worth litigating” to show that Gutride knew AlphaCap’s patents were invalid. Also, for the reasons discussed above, AlphaCap’s position as to validity did not lack color. The Federal Circuit found that § 1927 is not the proper vehicle to address concerns regarding AlphaCap’s business/litigation model. Further, the Eastern District of Texas was a proper forum because there was personal jurisdiction over Gust and counsel is not obligated to file in the most convenient forum. Lastly, the decision to settle is wholly committed to clients, not the attorneys. Accordingly, the Federal Circuit reversed the award of fees under § 1927 against Gutride.
Judge Wallach dissented and argued that the Federal Circuit improperly substituted its findings for that of the district court.