The US Court of Appeals for the Federal Circuit affirmed a denial of attorneys’ fees under 35 USC § 285 and cautioned future litigants to “tread carefully” in criticizing district courts. Spineology, Inc. v. Wright Medical Technology, Inc., Case No. 18-1276 (Fed. Cir. Dec. 14, 2018) (Moore, J).

Spineology sued Wright Medical for infringement of a patent directed to “expandable reamers,” a type of surgical implement. Infringement hinged on the construction of the claim term “body.” At claim construction, the parties advanced conflicting constructions of “body,” but the district court declined to adopt a construction. The parties cross-moved for summary judgment. The district court then construed “body” consistent with Wright’s non-infringement position and granted summary judgment to Wright. Wright moved for attorneys’ fees under § 285, arguing that Spineology’s claim construction and damages positions were meritless, and that Spineology had committed litigation misconduct. The district court denied the fee award, finding that neither Spineology’s positions nor its conduct rendered the case exceptional. Wright appealed, raising issues with respect to claim construction, alleged litigation misconduct and damages.

As to claim construction, Wright argued that Spineology’s proposed construction of “body” was meritless and its continued pursuit of that construction after the district court’s claim construction decision was unreasonable. The Federal Circuit found no abuse of discretion in the district court’s conclusion that, although Spineology’s construction was ultimately rejected, it was not exceptionally meritless. The Court further observed that Spineology and Wright both continued to pursue their constructions after the district court initially declined to adopt either one.

Similarly, in considering Spineology’s alleged litigation misconduct, the Federal Circuit found no abuse of discretion in the district court’s determination that the conduct was unexceptional.

Wright also urged on appeal that the district court should have more carefully evaluated Spineology’s damages positions, which it characterized as unreasonable, although damages issues had been mooted by the grant of summary judgment. The Federal Circuit found no error in the district court’s conclusion that Spineology’s damages positions were not exceptional. The Court further wrote that “[a] district court need not, as Wright seems to urge, litigate to resolution every issue mooted by summary judgment to rule on a motion for attorney fees,” and “caution[ed] future litigants to tread carefully in their complaints about district courts not doing enough.”

Accordingly, the Federal Circuit affirmed with costs to Spineology.