United Cannabis Corporation v. Pure Hemp Collective Inc.

Case: 22-1363 Document: 33 Page: 1 Filed: 05/08/2023
United States Court of Appeals
for the Federal Circuit
______________________
UNITED CANNABIS CORPORATION,
Plaintiff-Appellee
v.
PURE HEMP COLLECTIVE INC.,
Defendant-Appellant
______________________
2022-1363
______________________
Appeal from the United States District Court for the
District of Colorado in No. 1:18-cv-01922-WJM-NYW,
Judge William J. Martinez.
______________________
Decided: May 8, 2023
______________________
ORION ARMON, Cooley LLP, Denver, CO, argued for
plaintiff-appellee.
JAMES R. GOURLEY, Carstens, Allen, & Gourley, LLP,
Plano, TX, argued for defendant-appellant.
______________________
Before LOURIE, CUNNINGHAM, and STARK, Circuit Judges.
Case: 22-1363 Document: 33 Page: 2 Filed: 05/08/2023
2 UNITED CANNABIS CORPORATION v.
PURE HEMP COLLECTIVE INC.
STARK, Circuit Judge.
United Cannabis Corporation (“UCANN”) sued Pure
Hemp Collective (“Pure Hemp”) for infringement of U.S.
Patent No. 9,730,911 (the “’911 patent”) in the United
States District Court for the District of Colorado. After pro-
longed litigation, UCANN and Pure Hemp stipulated to the
dismissal of their claims and counterclaims. Pure Hemp
then moved for attorney fees and sanctions, which the dis-
trict court denied. Pure Hemp asks us to reverse and de-
clare this case exceptional. We affirm.
I
UCANN filed suit in the District of Colorado in July
2018, accusing Pure Hemp of infringing the ’911 patent.
The ’911 patent, entitled “Cannabis Extracts and Methods
of Preparing and Using the Same,” discloses the “extraction
of pharmaceutically active components . . . more particu-
larly . . . botanical drug substance (BDS) comprising can-
nabinoids obtained by extraction from cannabis.”
’911 patent 1:14-17. In April 2020, UCANN filed for bank-
ruptcy, which automatically stayed this litigation. After
the bankruptcy petition was dismissed in January 2021,
the parties stipulated to the dismissal of this patent case.
UCANN’s infringement claims were dismissed with preju-
dice while Pure Hemp’s invalidity and inequitable conduct
counterclaims were dismissed without prejudice. The stip-
ulation was silent on the issue of attorney fees.
Subsequently, on April 14, 2021, Pure Hemp moved for
an award of attorney fees pursuant to 35 U.S.C. § 285,
28 U.S.C. § 1927, and the district court’s inherent author-
ity. Pure Hemp asserted two bases for its requested relief:
(1) UCANN’s prosecution counsel had allegedly committed
inequitable conduct by copying text from a piece of prior
art, U.S. Patent Publication No. 2004/0033280 (“Whittle”),
into the specification of the ’911 patent and then not dis-
closing Whittle to the Patent and Trademark Office
(“PTO”) as prior art; and (2) UCANN’s litigation counsel,
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PURE HEMP COLLECTIVE INC.
Cooley LLP, purportedly took conflicting positions in its
representation of UCANN and another client, GW Pharma
(the owner of Whittle). Pure Hemp expressly notified the
district court that it did not seek any further proceedings,
including a trial or evidentiary hearing, in connection with
its motion. See, e.g., ECF No. 12 at 2 (Pure Hemp reiterat-
ing to this court it “did not request an evidentiary hearing
at the district court, and is not requesting one here”). Con-
sequently, the district court resolved and denied the motion
for attorney fees based on the existing record. In doing so,
the district court explained:
Ultimately, the Court finds that Defendant has
failed to establish that it is the prevailing party un-
der section 285, that this is an “exceptional” case
warranting an attorney’s fee award, or that Plain-
tiff’s counsel has acted in a vexatious or otherwise
unreasonable manner. In making this determina-
tion, the Court notes that the parties stipulated to
dismissal of this case before many of the factual dis-
putes Defendant cites were adjudicated on the mer-
its. (ECF No. 91.) The record on the substantive
merits and the materiality of Plaintiff’s purport-
edly inequitable conduct is woefully undeveloped,
and as such, does not paint a persuasive picture for
awarding fees.
J.A. 2-3 (emphasis in original). Pure Hemp timely ap-
pealed. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(1).
II
Pure Hemp sought to recover its attorney fees under
three different legal authorities, so we set out the legal
standards applicable to our review of each of them.
First, pursuant to 35 U.S.C. § 285, “[t]he court in ex-
ceptional cases may award reasonable attorney fees to the
prevailing party.” An exceptional case is “simply one that
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4 UNITED CANNABIS CORPORATION v.
PURE HEMP COLLECTIVE INC.
stands out from others with respect to the substantive
strength of a party’s litigating position (considering both
the governing law and the facts of the case) or the unrea-
sonable manner in which the case was litigated.” Octane
Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545,
554 (2014). Relevant considerations may include “frivo-
lousness, motivation, objective unreasonableness (both in
the factual and legal components of the case) and the need
in particular circumstances to advance considerations of
compensation and deterrence.” Id. at 554 n.6. In deter-
mining if a case is exceptional within the meaning of the
statute, district courts, “in the case-by-case exercise of their
discretion, consider[] the totality of the circumstances.” Id.
at 554. The “fee-seeking party must show that it is entitled
to § 285 fees by a ‘preponderance of evidence.’” Bayer Crop-
Science AG v. Dow AgroSciences LLC, 851 F.3d 1302, 1305
(Fed. Cir. 2017) (quoting Octane Fitness, 572 U.S. at 557-
58).
We apply “an abuse-of-discretion standard in review-
ing all aspects of a district court’s § 285 determination.”
Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 572 U.S.
559, 564 (2014). “To meet the abuse-of-discretion standard,
the [appellant] must show that the district court made a
clear error of judgment in weighing relevant factors or in
basing its decision on an error of law or on clearly errone-
ous factual findings.” Bayer CropScience, 851 F.3d at 1306(internal quotation marks omitted).
Second, 28 U.S.C. § 1927 states:
Any attorney . . . admitted to conduct cases in any
court of the United States . . . who so multiplies the
proceedings in any case unreasonably and vexa-
tiously may be required by the court to satisfy per-
sonally the excess costs, expenses, and attorneys’
fees reasonably incurred because of such conduct.
We review § 1927 motions under the law of the regional
circuit. See Gust, Inc. v. Alphacap Ventures, LLC, 905 F.3d
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UNITED CANNABIS CORPORATION v. 5
PURE HEMP COLLECTIVE INC.
1321, 1327 (Fed. Cir. 2018). The Tenth Circuit has cau-
tioned that § 1927 is an “extreme standard” and allows for
relief only when conduct “manifests either intentional or
reckless disregard of the attorney’s duties to the court.”
White v. Am. Airlines, Inc., 915 F.2d 1414, 1427 (10th Cir.
1990). The Tenth Circuit reviews “an award of sanctions
under § 1927 only for abuse of discretion,” but where the
exercise of discretion depends “on the resolution of a purely
legal issue, . . . we approach such a question de novo.”
Hamilton v. Boise Cascade Express, 519 F.3d 1197, 1202
(10th Cir. 2008). “A district court abuses its discretion
when it renders an arbitrary, capricious, whimsical, or
manifestly unreasonable judgment.” United States
v. Silva, 889 F.3d 704, 709 (10th Cir. 2018).
Third, “in narrowly defined circumstances federal
courts have inherent power to assess attorney’s fees against
counsel,” including for acting in “bad faith, vexatiously,
wantonly, or for oppressive reasons.” Chambers v. NASCO,
Inc., 501 U.S. 32, 45-46 (1991) (emphasis added). “When
reviewing the imposition of sanctions under a district
court’s inherent powers, we apply the law of the regional
circuit in which the district court sits.” Monsanto Co.
v. E.I. Du Pont de Nemours & Co., 748 F.3d 1189, 1196
(Fed. Cir. 2014). The Tenth Circuit reviews a district
court’s sanctions decision made under the court’s inherent
powers for abuse of discretion. See O’Rourke v. Dominion
Voting Sys., Inc., 2022 WL 17588344, at *2 (10th Cir.
Dec. 13, 2022).
III
In asking us to reverse the denial of attorney fees, Pure
Hemp identifies three supposed errors committed by the
district court: (1) failing to find Pure Hemp to be the pre-
vailing party in the litigation; (2) not concluding that the
undisputed facts establish inequitable conduct; and (3) not
recognizing that UCANN’s attorneys had a conflict of
Case: 22-1363 Document: 33 Page: 6 Filed: 05/08/2023
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interest for which they should be sanctioned. 1 We address
each issue in turn.
A
Under § 285, only a prevailing party is eligible to be
awarded attorney fees. The district court committed error
in not finding Pure Hemp to be the prevailing party in this
action. However, this error was harmless.
“[I]n identifying a prevailing party, we must consider
whether the district court’s decision effects or rebuffs a
plaintiff’s attempt to effect a material alteration in the le-
gal relationship between the parties.” B.E. Tech., L.L.C.
v. Facebook, Inc., 940 F.3d 675, 679 (Fed. Cir. 2019) (inter-
nal quotation marks omitted). Here, UCANN sued Pure
Hemp for patent infringement and, thereby, attempted to
effect a material alteration in the parties’ relationship by
imposing liability on Pure Hemp. This effort failed, as the
case ended – by agreement – with dismissal of UCANN’s
patent infringement claims with prejudice. Hence, Pure
Hemp successfully rebuffed UCANN’s lawsuit and ensured
that UCANN can never again assert the same patents
against Pure Hemp’s same accused products; both out-
comes make Pure Hemp the prevailing party. See Raniere
v. Microsoft Corp., 887 F.3d 1298, 1306 (Fed. Cir. 2018)
(“Appellees ‘won’ through the court’s dismissal of [appel-
lant’s] case with prejudice – they prevented [appellant]
1 As UCANN points out, in the district court Pure
Hemp advocated five grounds for why this case is purport-
edly exceptional, but it only presses two of these grounds
on appeal. We agree with UCANN that the other three ba-
ses are forfeited, see Becton Dickinson & Co. v. C.R. Bard,
Inc., 922 F.2d 792, 800 (Fed. Cir. 1990) (“[A]n issue not
raised by an appellant in its opening brief . . . is waived.”),
and we need not discuss them.
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from achieving a material alteration of the relationship be-
tween them, based on a decision marked by ‘judicial impri-
matur.’”); Highway Equip. Co. v. FECO, Ltd., 469 F.3d
1027, 1035 (Fed. Cir. 2006) (“[W]e conclude that as a mat-
ter of patent law, the dismissal with prejudice . . . has the
necessary judicial imprimatur to constitute a judicially
sanctioned change in the legal relationship of the parties,
such that the district court properly could entertain [a] fee
claim under 35 U.S.C. § 285.”).
UCANN has never contested, before the district court
or us, that Pure Hemp is the prevailing party. Instead,
UCANN argues that the district court’s error on this point
is harmless because the district court provided additional
reasons for denying Pure Hemp’s motion. We agree with
UCANN. After erroneously stating that Pure Hemp had
not established it was the prevailing party, the district
court went on to consider the question of whether this case
is exceptional and concluded that Pure Hemp failed to meet
its burden on this additional, necessary element of its mo-
tion. As we explain below, the district court did not abuse
its discretion in finding this case unexceptional. Therefore,
the court’s error was harmless. See 28 U.S.C. § 2111 (di-
recting appellate courts to review cases without regard to
errors that do not affect parties’ “substantial rights”);
Bridges v. Wilson, 996 F.3d 1094, 1099 (10th Cir. 2021)
(“The appellate court exercises common sense, trying to
make a realistic assessment of the practical likelihood that
the result in the district court would have been different
had the error not occurred.”) (internal quotation marks
omitted).
B
“To prove inequitable conduct, the challenger must
show by clear and convincing evidence that the patent ap-
plicant (1) misrepresented or omitted information material
to patentability, and (2) did so with specific intent to mis-
lead or deceive the PTO.” In re Rosuvastatin Calcium Pat.
Case: 22-1363 Document: 33 Page: 8 Filed: 05/08/2023
8 UNITED CANNABIS CORPORATION v.
PURE HEMP COLLECTIVE INC.
Litig., 703 F.3d 511, 519 (Fed. Cir. 2012). “We review the
district court’s findings of materiality and intent for clear
error.” Barry v. Medtronic, Inc., 914 F.3d 1310, 1333 (Fed.
Cir. 2019) (alterations in original omitted).
In this case, we have no findings to review. The district
court made no findings, and was not required to do so, be-
cause Pure Hemp voluntarily dismissed its counterclaim
for inequitable conduct before any such findings had been
made and, thereafter, in connection with its post-dismissal
motion for attorney fees, Pure Hemp told the district court
it did not seek any further evidentiary proceedings. See
ECF No. 12 at 2 (Pure Hemp acknowledging it “did not re-
quest an evidentiary hearing at the district court, and is
not requesting one here”); Oral Arg. at 2:40-45 (Q: “Did you
request a post-judgment evidentiary hearing?” A: “I did
not.”). It is self-evident that a district court does not abuse
its discretion by not conducting a post-dismissal inequita-
ble conduct proceeding, in aid of resolution of a § 285 mo-
tion, when the moving party explicitly disclaims any desire
for such a proceeding. See Thermolife Int’l LLC v. GNC
Corp., 922 F.3d 1347, 1357 (Fed. Cir. 2019) (“[W]e have em-
phasized the wide latitude district courts have to refuse to
add to the burdens of litigation by opening up issues that
have not been litigated but are asserted as bases for a fee
award.”) (emphasis in original).
Pure Hemp insists that the lack of factual findings on
either element of an inequitable conduct claim – specific
intent to deceive the PTO and materiality of the undis-
closed prior art reference – does not doom its appeal be-
cause Pure Hemp can satisfy its burden based on the
undisputed facts in the record. Even assuming this is the-
oretically possible, Pure Hemp’s contention is unavailing
here, as the limited record before us reveals genuine dis-
putes with respect to both elements. The attorney Pure
Hemp accuses of committing inequitable conduct, Cynthia
Kozakiewicz, explained why she viewed the Whittle refer-
ence to be immaterial and why she believed in good faith
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she did not have to disclose it to the PTO. See J.A. 282-84.
That Pure Hemp does not believe this testimony – and that
Pure Hemp may have been able to prove at a trial, by clear
and convincing evidence, that Ms. Kozakiewicz acted with
a specific intent to deceive – is irrelevant. What matters to
this appeal, and what the district court was free to treat as
dispositive in denying the motion, is that the record demon-
strates (at best for Pure Hemp) a genuine dispute as to the
material fact of intent; meaning Pure Hemp failed to meet
its burden to prove that this case is exceptional due to in-
equitable conduct. Pure Hemp did not seek further pro-
ceedings to try to make the required showing of intent to
deceive, so it was entirely proper for the district court to
reject the motion based solely on the limited record before
it.
The analysis is much the same on the issue of the ma-
teriality of the Whittle reference. UCANN made argu-
ments for non-materiality, and Pure Hemp argued for
materiality; the procedural posture did not require the dis-
trict court to resolve this dispute (and it did not), so the
record continues to contain (at best for Pure Hemp) a gen-
uine dispute on the material fact of materiality. Thus,
again, Pure Hemp failed to show that this case is excep-
tional due to inequitable conduct.
Pure Hemp places great emphasis on another theory of
inequitable conduct, which we also conclude lacks merit.
Pure Hemp points out that UCANN’s prosecution counsel
copied and pasted portions of Whittle and another prior art
reference into the ’911 patent application. She did not dis-
close Whittle to the PTO. In Pure Hemp’s view, this undis-
closed copying and pasting is inequitable conduct.
Appellant Br. at 26 (“The lack of disclosure is the problem
here – not the copying and pasting by itself.”). As support,
Pure Hemp relies on two district court cases, see CCC
Group, Inc. v. Martin Engineering Co., 683 F. Supp. 2d
1201 (D. Colo. 2010), and American Calcar, Inc. v. Ameri-
can Honda Motor Co., 2012 WL 1328640 (S.D. Cal. Apr. 17,
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10 UNITED CANNABIS CORPORATION v.
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2012), aff’d, 768 F.3d 1185 (Fed. Cir. 2014), neither of
which are binding, and both of which turn on specific facts
not present here. See CCC Grp., 683 F. Supp. 2d at 1209(finding inequitable conduct where patent applicant pro-
vided “a misleading portrayal of prior art” by including fig-
ure from prior art without identifying source and by
misstating what figure represented); Am. Calcar, 2012 WL
1328640, at *5, *8 (finding inequitable conduct where “the
overwhelming evidence indicate[d] [applicant] used the
[prior art] while working on the patent application” and
“the operational details of the [prior art] [were] material”
to patentability). In both cases, the courts made specific
findings that the copied prior art was material, while here
the district court made no such finding. Additionally, Ms.
Kozakiewicz provided an explanation for her copying and
pasting – essentially that it was all background infor-
mation well-known to a person of ordinary skill in the art
– and the undeveloped record gives us no reason to disbe-
lieve her testimony. J.A. 282-84, 298.
Pure Hemp offers another argument for why it can win
this appeal even if we find, as we have, that the record con-
tains genuine disputes of material fact: that we can make
our own findings on intent to deceive and materiality. See,
e.g., Appellant Br. at 14 (“When this Court considers all of
the evidence, it can not only reverse the district court’s
findings, it can also affirmatively hold that this case was
exceptional . . . .”); id. at 24 (suggesting this Court could
find that “[t]he single most reasonable inference based on
all of the actions during prosecution of the [’]911 Patent is
that Whittle was withheld from the USPTO with intent to
deceive”). Pure Hemp fundamentally misunderstands our
role as a court of appeals. See, e.g., Spineology, Inc. v.
Wright Med. Tech., Inc., 910 F.3d 1227, 1230 (Fed. Cir.
2018) (“We will not force the district court, on a motion for
attorney fees, to conduct the trial it never had . . . and we
– an appellate court – will certainly not conduct that trial
in the first instance.”) (emphasis added); Impax Labs. Inc.
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v. Lannett Holdings Inc., 893 F.3d 1372, 1382 (Fed. Cir.
2018) (“We do not and should not reweigh evidence or make
factual findings anew on appeal.”). We reject Pure Hemp’s
invitation to invade the province of the district court and
make our own findings of fact.
Pure Hemp offers one final argument with respect to
inequitable conduct: that the district court erred in failing
to provide a more fulsome analysis. This contention, too,
lacks merit. The district court plainly stated that it consid-
ered “all of the parties’ arguments,” J.A. 2, and Pure Hemp
provides no reason for us to question this statement. See
Novartis AG v. Torrent Pharms. Ltd., 853 F.3d 1316, 1328
(Fed. Cir. 2017) (“[T]his court has said on multiple occa-
sions that failure to explicitly discuss every issue or every
piece of evidence does not alone establish that the tribunal
did not consider it.”); Lab. Corp. of Am. Holdings v. Chiron
Corp., 384 F.3d 1326, 1332 (Fed. Cir. 2004) (stating that
district court’s failure to discuss issue did not mean issue
was not considered). Moreover, “[b]ecause of the high level
of deference owed to district courts on this issue and the
limited circumstances that could qualify as exceptional,
this court has not imposed a blanket requirement that a
district court provide its reasoning in attorney fee cases.”
Wedgetail Ltd. v. Huddleston Deluxe, Inc., 576 F.3d 1302,
1305 (Fed. Cir. 2009); see also Serio-US Indus., Inc. v. Plas-
tic Recovery Techs. Corp., 459 F.3d 1311, 1322 (Fed. Cir.
2006) (upholding denial of fees even without any district
court opinion where “the record as a whole . . . adequately
supports the denial of attorney fees”). 2 We decline to im-
pose such a requirement now.
2 “Instead, we have held only that a statement of the
district court’s reasoning is generally necessary to enable
review when an attorney fees motion is granted or when
attorney fees are denied despite the presence of one or more
of the [following] circumstances”: “inequitable conduct
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12 UNITED CANNABIS CORPORATION v.
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C
Pure Hemp additionally argues that this case is excep-
tional because UCANN’s attorneys suffered from a conflict
of interest for which they should be sanctioned. We reject
this argument because it is waived. Pure Hemp did not cite
Rule 1.7 of the Model Rules of Professional Conduct, which
is the basis for its conflict contention before us, to the dis-
trict court. See In re Google Tech. Holdings LLC, 980 F.3d
858, 863 (Fed. Cir. 2020) (“We have regularly stated and
applied the important principle that a position not pre-
sented in the tribunal under review will not be considered
on appeal in the absence of exceptional circumstances.”).
Pure Hemp’s allegations also lack merit. 3 Rule 1.7 di-
rects that “a lawyer shall not represent a client if the rep-
resentation involves a concurrent conflict of interest,” and
goes on to define a concurrent conflict of interest as includ-
ing where (as arguably relevant here) “the representation
of one client will be directly adverse to another client.” To
evaluate whether UCANN suffers from such a conflict, we
must look to “the total context.” Dr. Falk Pharma GmbH
v. GeneriCo, LLC, 916 F.3d 975, 982 (Fed. Cir. 2019). Here,
the predominant feature of the context is the lack of evi-
dence. While Pure Hemp alleges that Cooley simultane-
ously took conflicting positions for two of its clients, by
prosecuting identical patents for both UCANN and GW
Pharma, see Appellant Br. at 28 (“Cooley attorneys were
before the PTO; litigation misconduct; vexatious, unjusti-
fied, and otherwise bad faith litigation; a frivolous suit or
willful infringement.” Wedgetail, 576 F.3d at 1304-05 (in-
ternal citations omitted). None of these circumstances is
present here.
3 We apply regional circuit law to the issue of conflict
of interest. See Monsanto, 748 F.3d at 1196.
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taking different positions in different forums on a critical
issue: who invented a liquid cannabinoid formulation
wherein at least 95% of the total cannabinoids is CBD.”), it
has presented no evidence that the patents Cooley prose-
cuted and obtained are identical. See J.A. 205-06 (Pure
Hemp’s district court argument, which is devoid of evi-
dence). Pure Hemp also failed to show that anything Coo-
ley did in its representation of UCANN was directly
adverse to the interests of GW Pharma, or vice versa.
Therefore, even if we were to reach the merits, we would
reject Pure Hemp’s argument that this case is exceptional
due to an unproven conflict of interest suffered by
UCANN’s attorneys at Cooley. 4
IV
Finally, we address whether Pure Hemp’s appeal is
frivolous. We do so because UCANN previously moved to
sanction Pure Hemp for a frivolous appeal and it is our un-
derstanding, based on the briefing and oral argument, that
UCANN continues to view this appeal as frivolous. See
Oral Arg. at 18:01-27. We denied the prior motion without
prejudice, to allow UCANN to potentially renew its motion
after disposition of the merits of the appeal. ECF No. 15.
Rather than requiring the parties to brief a motion we
know we would deny, we take this opportunity to explain
why, although a close call, we deem this appeal not frivo-
lous.
As we have explained:
4 Particularly given the lack of evidence, Pure Hemp
is not helped by its citation to two non-binding district
court cases. See Straight Path IP Grp., Inc. v. Cisco Sys.,
Inc., 2020 WL 2539002 (N.D. Cal. May 19, 2020); Andersen
Mfg. v. Wyers Prods. Grp., 2019 WL 4007772 (D. Colo. Aug.
23, 2019).
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14 UNITED CANNABIS CORPORATION v.
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[T]here are two senses in which an appeal can be
held frivolous: First where an appeal is taken in a
case in which “the judgment by the tribunal below
was so plainly correct and the legal authority con-
trary to appellant’s position so clear that there re-
ally is no appealable issue,” the appeal is held to be
“frivolous as filed.” Second, even in cases in which
genuinely appealable issues may exist, so that the
taking of an appeal is not frivolous, the appellant’s
misconduct in arguing the appeal may be such as
to justify holding the appeal to be “frivolous as ar-
gued.”
Romala Corp. v. United States, 927 F.2d 1219, 1222 (Fed.
Cir. 1991) (internal citations omitted); see also Fed. R. App.
P. 38.
While Pure Hemp’s position is extremely weak, it is
neither “frivolous as filed” nor “frivolous as argued.” Pure
Hemp has prevailed on its appeal from the district court’s
erroneous conclusion that Pure Hemp was not the prevail-
ing party. While UCANN never contested this point, Pure
Hemp’s victory on it persuades us that its appeal was not
entirely frivolous when filed. As for how it has argued its
appeal, there is much on which to fault Pure Hemp, includ-
ing its contentions that the fact-laden issue of an attorney’s
specific intent can be resolved on our record as undisputed
and that, alternatively, we should sit as factfinders. Then
there are Pure Hemp’s unsupported attacks on the integ-
rity of UCANN’s prosecution counsel (as discussed above in
connection with inequitable conduct) and on UCANN’s lit-
igating counsel (whom Pure Hemp, unconvincingly, ac-
cuses of misconduct on appeal). See, e.g., Appellant Reply
Br. at 8 (“United Cannabis has misrepresented the con-
tents of Whittle in its response brief.”), id. at 20 (“It ap-
pears that United Cannabis has presented false testimony
to this Court in support of its position.”), id. at 21 (“And
now, this tribunal has been presented with additional evi-
dence of litigation misconduct on the part of Cooley in its
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representation of United Cannabis.”). We take this oppor-
tunity to remind counsel of their obligation not to lightly
launch attacks on one another’s integrity and most cer-
tainly not to do so without a sound basis and solid evidence.
Although we are not pleased with how Pure Hemp has ar-
gued this appeal, we cannot say this appeal, as a whole,
was “frivolous as argued.”
Accordingly, having sua sponte raised the issue of
whether this appeal was frivolous, we conclude it was not.
V
While we have expressly discussed only the § 285 basis
for Pure Hemp’s fee motion, our analysis applies equally to
the other grounds on which Pure Hemp relied: § 1927 and
the court’s inherent authority. Pure Hemp’s motion fails
on those grounds as well. We have considered Pure Hemp’s
remaining arguments and find them unpersuasive. For the
foregoing reasons, we affirm.
AFFIRMED
COSTS
Costs to Appellee.