Digest of Biax Corp. v. Nvidia Corp., No. 2013-1654 (Fed. Cir. Feb. 24, 2015) (nonprecedential). On appeal from D. Co. Before Lourie, Dyk, and Taranto.

Procedural Posture: Appeal from the district court’s grant of attorney fees to defendants Nvidia Corp., Sony Computer Entertainment America, Inc., and Sony Electronics, Inc. pursuant to 35 U.S.C. § 285. Cross-appeal from the district court’s denial of attorney fees against Biax Corp.’s (“Biax”) trial counsel under 28 U.S.C. § 1927. CAFC reversed the grant of fees under § 285 and affirmed the denial of fees under § 1927.

  • Attorney Fees under 35 U.S.C. § 285: The district court found that Biax’s litigation was objectively baseless and brought in subjective bad faith because Biax continued to pursue litigation after: (i) the court’s earlier claim construction orders, which supposedly foreclosed Biax’s infringement contentions; and (ii) an alleged admission by Biax’s expert that the defendants’ devices could not infringe. The Federal Circuit found that the district court misread the expert’s testimony, which did not contain an admission that Biax had no infringement positions under the district court’s claim construction. Additionally, the Federal Circuit found that the claim construction did not foreclose Biax’s infringement position because Biax’s position was reasonable in light of an ambiguity concerning a claim limitation, which ambiguity was not resolved until summary judgment. Thus, the Federal Circuit held that neither the expert testimony nor the claim construction orders foreclosed Biax’s infringement position.
  • Attorney Fees under 28 U.S.C. § 1927: Attorney Fees: The Federal Circuit affirmed the district court’s denial of attorney fees under § 1927 because Biax’s counsel did not exceed the bounds of zealous advocacy. Applying Tenth Circuit case law, the Federal Circuit affirmed the denial of fees under § 1927 for the same reasons that it reversed the award of fees under § 285—because § 1927 is “inapplicable when a lawyer puts forth only objectively reasonable arguments in the absence of bad faith.”