Homeland Housewares, LLC v. Sorensen Research and Development Trust

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HOMELAND HOUSEWARES, LLC,
Plaintiff/Counterclaim Defendant-Appellee,
AND
HASTIE2MARKET, LLC, C-SQUARED TV, INC.,
INFOMERCIAL CONSULTING CORPORATION,
BRENTWOOD CORPORATE SERVICES, INC.,
BABY BULLET, LLC, CAPITAL BRANDS, LLC,
AND DOES 1-10,
Counterclaim Defendants,
v.
SORENSEN RESEARCH AND DEVELOPMENT
TRUST,
Defendant/Counterclaimant-Appellant.
______________________
2013-1537
______________________
Appeal from the United States District Court for the
Central District of California in No. 11-CV-3720, Judge
George H. Wu.
______________________
Decided: September 8, 2014
______________________

-- 1 of 8 --

HOMELAND HOUSEWARES v. SORENSEN RESEARCH 2
R. J OSEPH T ROJAN, Trojan Law Offices, of Beverly
Hills, California, argued for plaintiff/counterclaim de-
fendant-appellee. Of counsel was D YLAN C. D ANG.
P ATRICIA A. SHACKELFORD, Law Office of Patricia A.
Shackelford, of Encinitas, California, argued for defend-
ant/counterclaimant-appellant. With her on the brief was
CHRISTIAN F ENTON, Law Office of Christian Fenton, of
San Diego, California.
______________________
Before L OURIE, BRYSON, and CHEN, Circuit Judges.
CHEN, Circuit Judge.
Sorensen Research and Development Trust
(“Sorensen”) appeals from the final judgment of the Unit-
ed States District Court for the Central District of Cali-
fornia awarding attorney fees to Homeland Housewares,
LLC (“Homeland”) under 35 U.S.C. § 285. Because we
conclude that the court did not abuse its discretion in
finding the case “exceptional” and in setting the award
amount, we affirm.
BACKGROUND
Sorensen owns the rights to U.S. Patent No. 6,599,460
(the “’460 patent”), which claims a method for injecting
fluid plastic into a molding as part of the manufacture of
“thin walls” in plastic products. In March 2011, Sorensen
sent a cease-and-desist letter to Homeland, asserting that
Homeland’s Magic Bullet product—a food blender sold
with plastic cup attachments—infringed the ’460 patent.
One month later, Homeland sought a declaratory judg-
ment of non-infringement, invalidity, and unenforceabil-
ity of the ’460 patent. Sorensen then filed a counterclaim,
alleging that three of Homeland’s blender products in-
fringed the patent.

-- 2 of 8 --

HOMELAND HOUSEWARES v. SORENSEN RESEARCH 3
After the district court issued its claim construction
order, Homeland moved for summary judgment of non-
infringement. In granting summary judgment, the court
found that Sorensen had produced no admissible evidence
that Homeland’s products infringed three claim limita-
tions of the ’460 patent.1
After the court granted summary judgment of non-
infringement, Homeland continued to pursue its declara-
tory judgment claims, moving for summary judgment of
invalidity. In opposing Homeland’s motion, Sorensen
filed the report of expert Dr. Tim A. Osswald (the
“Osswald Report”). The court struck the Osswald Report
because, in addition to material related to the patent’s
validity, the report included material related to infringe-
ment that was not before the court when the issue of
infringement was decided. The court ordered Sorensen to
remove the infringement-related material. Sorensen then
filed a redacted version of the Osswald Report, which the
court accepted. The court ultimately denied Homeland’s
motion for summary judgment of invalidity, and granted
summary judgment in favor of Sorensen that Homeland
had not produced sufficient evidence to proceed with its
invalidity claims.
In April 2013, Homeland moved for attorney fees un-
der 35 U.S.C. § 285. Sorensen filed an opposition to
Homeland’s motion, attaching the unredacted Osswald
1 Sorensen challenged the district court’s grant of
summary judgment of non-infringement in a companion
appeal, No. 13-1345, which we address today in a sepa-
rate opinion affirming the judgment of the district court.
For more detail about the ’460 patent, the accused prod-
ucts, and the district court’s reasons for granting sum-
mary judgment of non-infringement, see Homeland
Housewares, LLC v. Sorensen Research and Development
Trust, No. 2013-1345, -1383, Slip Op. at 2–6.

-- 3 of 8 --

HOMELAND HOUSEWARES v. SORENSEN RESEARCH 4
Report as an exhibit. Homeland moved to strike the
report.
The court partially granted Homeland’s motion for at-
torney fees, awarding Homeland $253,777.37. The court
limited the award to fees connected to Homeland’s de-
fense through August 23, 2012—the date of the hearing
on Homeland’s motion for summary judgment of non-
infringement. With respect to that infringement portion
of the litigation, the court found that Sorensen’s conduct
was “exceptional.” The court faulted Sorensen for filing
unsolicited briefs after issues were taken under submis-
sion, as well as for filing multiple motions for reconsidera-
tion that the court deemed were without merit. The court
was most troubled, however, by Sorensen’s repeated
failures to introduce admissible evidence of infringement.
Sorensen’s repeated unreasonable litigation con-
duct unjustifiably burdened the Court, Homeland,
and even itself, because developing the evidence
would have been simpler, less costly, and poten-
tially more effective than its paper litigation
strategy. While this case would not necessarily
have been simple had it been litigated properly, it
would have either have cleared the threshold hur-
dle of showing that the dimensions of the accused
product indicate potential infringement, or it
would have stopped them. Regardless of the ade-
quacy of its pre-filing investigation or Sorensen’s
state of mind, it was clear and convincing miscon-
duct to make Homeland litigate infringement giv-
en the state of Sorensen’s evidence of the accused
products’ dimensions.
J.A. 11.
Although the court awarded attorney fees connected
to Homeland’s non-infringement defense, the court de-
clined to award fees for Homeland’s subsequent pursuit of
its invalidity claims. The court also denied Homeland’s

-- 4 of 8 --

HOMELAND HOUSEWARES v. SORENSEN RESEARCH 5
request for fees for its discovery costs because Homeland
already had an opportunity to demonstrate Sorensen’s
discovery misconduct when litigating its motions to
compel. Moreover, the court denied Homeland’s request
to award the cost of its experts, explaining that the “con-
duct in this case does not seem to meet the standard of
uncleanliness above and beyond that required for the
exceptional case standard.” J.A. 12 (citing MarcTec, LLC
v. Johnson & Johnson, 664 F.3d 907, 921 (Fed. Cir. 2012);
Takeda Chem. Indus., Ltd. v. Mylan Labs., Inc., 549 F.3d
1381, 1391 (Fed. Cir. 2008)).
Finally, the court granted Homeland’s motion to
strike the unredacted Osswald Report, which the court
found was not relevant to the issues raised by Homeland’s
request for attorney fees. The redacted report remained
in the record.
Sorensen timely appeals. Sorensen requests that we
reverse the award of attorney fees on the basis that the
district court erred in finding the case exceptional. In the
event that we disagree that the district court’s “excep-
tional case” finding was in error, Sorensen asks that we
vacate and remand on the basis that the court failed to
limit the award to the costs that Homeland incurred in
responding to specific acts of litigation misconduct.
Sorensen also requests that we reverse the district court’s
order striking the Osswald Report.
We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(1).
D ISCUSSION
“The court in exceptional cases may award reasona-
ble attorney fees to the prevailing party.” 35 U.S.C. § 285.
As the Supreme Court recently clarified, “an ‘exceptional’
case is simply one that stands out from others with re-
spect to the substantive strength of a party's litigating
position (considering both the governing law and the facts

-- 5 of 8 --

HOMELAND HOUSEWARES v. SORENSEN RESEARCH 6
of the case) or the unreasonable manner in which the case
was litigated.” Octane Fitness, LLC v. ICON Health &
Fitness, Inc., 134 S. Ct. 1749, 1756 (2014). The Court
elaborated that “[d]istrict courts may determine whether
a case is ‘exceptional’ in the case-by-case exercise of their
discretion, considering the totality of the circumstances.”
Id. Moreover, we must apply “an abuse-of-discretion
standard in reviewing all aspects of a district court’s § 285
determination.” Highmark Inc. v. Allcare Health Mgmt.
Sys., Inc., 134 S. Ct. 1744, 1749 (2014). Under this defer-
ential standard of review, we conclude that the district
court did not abuse its discretion in finding Sorensen’s
conduct “exceptional.”
As we suggested in affirming the district court’s
summary judgment of non-infringement, Sorensen did not
seem to understand its obligation to produce evidence in
opposing summary judgment. Once Homeland pointed
out the absence of evidence in Sorensen’s case, the burden
shifted to Sorensen to “designate specific facts showing
that there is a genuine issue for trial.” Homeland, No.
2013-1345, -1383, Slip Op. at 9 (quoting Celotex Corp. v.
Catrett, 477 U.S. 316, 324 (1986)). Sorensen, however,
appeared unprepared or unwilling to satisfy its burden.
Although Sorensen repeatedly attacked Homeland’s
evidence, it failed to produce its own admissible evidence
of infringement. As the district court observed, “after
more than a year of opportunities to take discovery and
run tests, Sorensen [had] presented no evidence whatso-
ever . . . and [had] not even suggested what type of evi-
dence it might present in that regard.” J.A. 2863.
In addition to lamenting the lack of admissible evi-
dence of infringement, the district court mentioned
Sorensen’s repetitive and unsolicited filings. Although we
have doubts that the unsolicited filings described by the
district court, standing alone, could justify an “exceptional
case” finding, we see no abuse of discretion in the court
factoring in this conduct as part of its consideration of the

-- 6 of 8 --

HOMELAND HOUSEWARES v. SORENSEN RESEARCH 7
“totality of the circumstances.” Octane, 134 S. Ct. at
1756.
We agree with Sorensen that “[a] patent holder has
the right to vigorously enforce its presumptively valid
patent.” Appellant’s Br. 13. But vigorous enforcement
“cannot overpower a litigant’s and its counsel’s obligation
to file cases reasonably based in law and fact and to
litigate those cases in good faith.” Eon-Net LP v. Flagstar
Bancorp, 653 F.3d 1314, 1328 (Fed. Cir. 2011). The
district court here did not abuse its discretion in finding
this case “exceptional” based on Sorensen’s failure to
produce admissible evidence of infringement, as well as
Sorensen’s overall conduct during the litigation.
Turning to the district court’s calculation of attorney
fees, we find that the district court did not abuse its
discretion in determining the award amount. We have
long afforded district courts “considerable discretion” in
determining the amount of reasonable attorney fees under
§ 285, as we respect “the district court’s superior under-
standing of the litigation and the desirability of avoiding
frequent appellate review of what essentially are factual
matters.” Bywaters v. United States, 670 F.3d 1221, 1228
(Fed. Cir. 2012) (quoting Hensley v. Eckerhart, 461 U.S.
424, 437 (1983)). The district court here was reasonably
careful in calculating the award. The court independently
reviewed Homeland’s billing entries line by line and, as
discussed in the Background, supra at 4–5, limited the
award to costs incurred by Homeland prior to the court’s
grant of summary judgment of non-infringement.
Sorensen argues that the district court’s fee calcula-
tion was not sufficiently rooted in the conduct that the
court found exceptional. The district court, Sorensen
contends, should have limited the award to the costs that
Homeland incurred in responding to specific acts of litiga-
tion misconduct. We decline, however, to require such
granularity from the district court, particularly because it

-- 7 of 8 --

HOMELAND HOUSEWARES v. SORENSEN RESEARCH 8
is the “totality of the circumstances,” and not just discrete
acts of litigation conduct, that justify the court’s award of
fees. See Octane, 134 S. Ct. at 1756.
Finally, we find no abuse of discretion in the district
court’s decision to strike the unredacted Osswald Report.
Sorensen asserts that the full report demonstrated the
reasonableness of its infringement theory and was thus
relevant to the question of whether Sorensen’s litigation
conduct merited the award of attorney fees to Homeland.
Most of the redacted portions of the report, however,
appear to address the inadequacy of Homeland’s evidence
of non-infringement, not the adequacy (or presence) of
Sorensen’s evidence of infringement. To the extent the
report focuses on affirmative evidence of infringement, it
relies on computer simulations run by Sorensen after the
court found for Homeland on summary judgment of non-
infringement. As the district court suggested, tests
conducted after summary judgment of non-infringement
have little relevance in assessing the reasonableness of
Sorensen’s conduct during the infringement portion of the
litigation.
For the reasons stated above, the district court’s
judgment is affirmed.
AFFIRMED

-- 8 of 8 --