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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
` Case No.: 21-CV-812 TWR (JLB)
`
`ORDER DENYING DEFENDANT’S
`MOTION FOR ATTORNEY’S FEES
`
`(ECF No. 389)
`
`Defendant.
`
`TACTION TECHNOLOGY, INC.,
`Plaintiff,
`
`v.
`APPLE INC.,
`
`
`Presently before the Court is Defendant Apple Inc.’s Motion for Attorney’s Fees
`
`(“Mot.,” ECF No. 389 (public), ECF No. 393 (sealed)), as well as Plaintiff Taction
`Technology, Inc.’s Response in Opposition to (“Opp’n,” ECF No. 399 (public), ECF No.
`401 (sealed)), and Apple’s Reply in Support of (“Reply,” ECF No. 402) the Motion. The
`Court vacated the hearing and took the Motion under submission on the papers without
`oral argument pursuant to Civil Local Rule 7.1(d)(1). (See ECF No. 404.) Having carefully
`reviewed the record, the Parties’ arguments, and the relevant law, the Court DENIES
`Apple’s Motion.
`
`BACKGROUND
`
`The Asserted Patents
`I.
`Taction is the owner and assignee of U.S. Patent No. 10,659,885 (“the ’885 Patent”)
`
`and U.S. Patent No. 10,820,117 (“the ’117 Patent”) (collectively, “the asserted patents”).
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`(See ECF No. 1 (“Compl.”) ¶¶ 68, 72); see also U.S. Patent No. 10,659,885, at [73] (issued
`May 19, 2020); U.S. Patent No. 10,820,117, at [73] (issued Oct. 27, 2020). The ’885 Patent
`is entitled “Systems and Methods for Generating Damped Electromagnetically Actuated
`Planar Motion for Audio-Frequency Vibrations” and was issued on May 19, 2020. ’885
`Patent at [45], [54]. The ’117 Patent is entitled the same and was issued on October 27,
`2020. ’117 Patent at [45], [54]. The ’885 Patent and the ’117 Patent share a common
`specification, and both patents claim priority to Provisional Application No. 62/054,712
`filed on September 24, 2014. ’885 Patent at [60]; ’117 Patent at [60].
`
`The invention described in the ’885 Patent and the ’117 Patent “relates to tactile
`transducers that produce bass frequency vibrations for perception by touch.” ’885 Patent
`col. 1 ll. 20–21.1 Independent claim 1 of the ’885 Patent recites:
`1.
`An apparatus for imparting motion to the skin of a user, the apparatus
`comprising:
`a housing;
`a plurality of coils capable of carrying electrical current;
`a plurality of magnets arranged in operative proximity to the plurality of coils;
`a moving portion comprising an inertial mass and the plurality of magnets;
`a suspension comprising a plurality of flexures that guides the moving portion
`in a planar motion with respect to the housing and the plurality of conductive
`coils;
`wherein movement of the moving portion is damped by a ferrofluid in
`physical contact with at least the moving portion; and
`wherein the ferrofluid reduces at least a mechanical resonance within the
`frequency range of 40-200 Hz in response to electrical signals applied to the
`plurality of conductive coils.
`
`
`
`’885 Patent col. 14 ll. 48–65.
`
`
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`1
`Because the ’885 Patent and the ’117 Patent share a common specification, the Court will cite to
`only the ’885 Patent’s specification for ease of reference.
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`Independent claim 1 of the ’117 Patent recites:
`1. An apparatus comprising:
`a housing;
`a plurality of conductive coils capable of carrying electrical current;
`a plurality of magnets arranged in operative proximity to the plurality of
`conductive coils;
`a moving portion comprising an inertial mass and the plurality of magnets;
`a suspension comprising a plurality of flexures that guides the moving portion
`in a planar motion with respect to the housing and the plurality of conductive
`coils;
`wherein vibration of the apparatus imparts vibrations to a user’s skin;
`wherein vibration of the apparatus is damped by a viscous ferrofluid in
`physical contact with at least the moving portion;
`wherein the viscous ferrofluid reduces at least a resonance within a frequency
`range of 40-200 Hz in response to signals applied to the plurality of
`conductive coils;
`wherein said moving portion includes at least a pocket that provides space for
`at least a magnet;
`wherein each of said plurality of flexures is more resistant to motion
`transverse to a plane of the moving portion than it is to linear motion in the
`plane of the moving portion; and
`wherein said housing is generally cuboid in shape.
`’117 Patent col. 14 l. 47–col. 15 l. 5.
`II.
`Procedural History
`
`On April 26, 2021, Taction filed a Complaint against Apple, alleging infringement
`of the asserted patents. (See generally Compl.) Specifically, Taction alleged that Apple
`had directly infringed and induced or contributed to the infringement of the asserted patents
`by making, using, selling, and offering for sale Apple products, including the iPhone and
`Apple Watch, that implement haptics technology, (see id. ¶¶ 77, 80), which refers to the
`science of enabling interaction with technology through the sense of touch, such as, for
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`example, through the use of vibrations. (See ECF No. 73 at 1.) Apple answered the
`Complaint and filed Counterclaims against Taction on July 8, 2021. (See generally ECF
`No. 17.)
`On October 21, 2022, after this action was transferred to the undersigned, (see ECF
`No. 48), Apple filed before the Patent Trial and Appeal Board (“PTAB”) four petitions for
`inter partes review (“IPR”), challenging the validity of all of the asserted claims of the
`asserted patents. (See ECF No. 53-1 (“Kete Decl.”) Exs. 1–4.) On January 26, 2022, the
`Court stayed the action, including further claim construction briefing, pending the PTAB’s
`decision on whether to institute the IPRs. (See ECF No. 76 at 6.) The PTAB issued
`decisions denying institution of IPR for all four IPR proceedings related to the asserted
`patents on April 18, 2022. (See generally ECF No. 97.)
`On June 2, 2022, the Court lifted the stay, (see generally ECF No. 98), and the Court
`held the Markman hearing on September 15, 2022. (See ECF No. 126.) The Court’s Claim
`Construction Order followed on September 28, 2022. (See generally ECF No. 141.) On
`June 15, 2023, the Court denied Taction’s Motion for Leave to Amend its Complaint. (See
`generally ECF No. 318.)
`In connection with Apple’s Motion for Summary Judgment, the Court issued a
`Tentative Revised Claim Construction Order on July 11, 2023. (See generally ECF No.
`338.) On August 11, 2023, the Court granted Apple’s motion for summary judgment of
`non-infringement, (see generally ECF No. 378 (the “Summary Judgment Order”)), and
`entered Judgment in favor of Apple and against Taction. (See generally ECF No. 379.)
`By the present motion, Apple moves for attorney’s fees pursuant to 35 U.S.C. § 285.
`(See Mot. at 1, 12–13.) Specifically, Apple requests that the Court award Apple its
`attorney’s fees and expert expenses it incurred since October 2022, which Apple estimates
`to be $4,500,000 and $444,000, respectively. (See id. at 13); see also Fed. R. Civ. P.
`54(d)(2)(B)(iii) (requiring that any motion for attorney’s fees must “state the amount
`sought or provide a fair estimate of it”).
`/ / /
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`LEGAL STANDARDS
`“Section 285 of the Patent Act authorizes a district court to award attorney’s fees in
`patent litigation.” Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 548
`(2014). Section 285 provides that “[t]he court in exceptional cases may award reasonable
`attorney fees to the prevailing party.” 35 U.S.C. § 285.
`The Supreme Court has held that “an ‘exceptional’ case is simply one that 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 unreasonable manner
`in which the case was litigated.” Octane Fitness, 572 U.S. at 554; accord Energy Heating,
`LLC v. Heat On-The-Fly, LLC, 15 F.4th 1378, 1382 (Fed. Cir. 2021). “[A] case presenting
`either subjective bad faith or exceptionally meritless claims may sufficiently set itself apart
`from mine-run cases to warrant a fee award.” Octane Fitness, 572 U.S. at 555. But “fee
`awards are not to be used ‘as a penalty for failure to win a patent infringement suit.’”
`Checkpoint Sys., Inc. v. All-Tag Sec. S.A., 858 F.3d 1371, 1376 (Fed. Cir. 2017) (quoting
`Octane Fitness, 572 U.S. at 548); see Universal Stabilization Techs., Inc. v. Advanced
`Bionutrition Corp., No. 17CV87-GPC(MDD), 2018 WL 6181479, at *4 (S.D. Cal.
`Nov. 27, 2018) (“Failure to win on summary judgment is not a basis for an attorney’s fee
`award under § 285.”); see also FireBlok IP Holdings, LLC v. Hilti, Inc., 855 F. App’x 735,
`739 (Fed. Cir. 2021) (“The strength of a party’s litigation position is what is relevant to an
`exceptional case determination, not the correctness or success of that position.” (citing SFA
`Sys., LLC v. Newegg Inc., 793 F.3d 1344, 1348 (Fed. Cir. 2015))).
`“[A] district court makes the exceptional-case determination on a case-by-case basis
`considering the totality of the circumstances.” Energy Heating, 15 F.4th at 1382 (citing
`Octane Fitness, 572 U.S. at 554); see Intell. Ventures I LLC v. Trend Micro Inc., 944 F.3d
`1380, 1384 (Fed. Cir. 2019) (explaining that a district court must determine whether “the
`case overall was exceptional”). In determining whether to award fees, district courts may
`consider a nonexclusive list of factors, including “‘frivolousness, motivation, objective
`unreasonableness (both in the factual and legal components of the case) and the need in
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`particular circumstances to advance considerations of compensation and deterrence.’”
`Octane Fitness, 572 U.S. at 554 n.6 (quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 534
`n.19 (1994)). There is no precise rule or formula for determining whether to award
`attorney’s fees, but instead equitable discretion should be exercised in light of the above
`considerations. Id. at 554 (quoting Fogerty, 510 U.S. at 534); see Blackbird Tech LLC v.
`Health In Motion LLC, 944 F.3d 910, 914 (Fed. Cir. 2019).
`The determination of whether a case is “exceptional” under § 285 is committed “to
`the discretion of the district court.” Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 572
`U.S. 559, 563 (2014); see Thermolife Int’l LLC v. GNC Corp., 922 F.3d 1347, 1356 (Fed.
`Cir. 2019) (“We generally ‘give great deference to the district court’s exercise of discretion
`in awarding fees.’” (quoting Energy Heating, 889 F.3d at 1307)); Spineology, 910 F.3d at
`1229 (“We review all aspects of a district court’s § 285 determination for abuse of
`discretion, keeping in mind that the district court is better positioned to decide whether a
`case is exceptional, because it lives with the case over a prolonged period of time.” (quoting
`Highmark, 572 U.S. at 560, 564)). “A district court must ‘provide a concise but clear
`explanation of its reasons for the fee award.’” Thermolife, 922 F.3d at 1356 (quoting
`Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)). The party seeking fees must prove that
`the case is exceptional by a preponderance of the evidence. Energy Heating, 15 F.4th at
`1382; see Octane Fitness, 572 U.S. at 557–58.
`ANALYSIS
`Apple argues that Taction’s unreasonable tactics during this litigation render this
`case exceptional under 35 U.S.C. § 285. (See Mot. at 1.) In response, Taction argues that
`Apple’s Motion should be denied because it is premature, illogical, overreaching, and
`inconsistent with Apple’s own behavior during the litigation. (See Opp’n at 1–3.)
`To support its contention that this is an exceptional case warranting an award of
`attorney’s fees, Apple primarily relies on the fact that the Court granted its Motion for
`Summary Judgment of non-infringement. (See Mot. at 6–11.) Apple asserts that a grant
`of summary judgment of non-infringement is a strong indication that a plaintiff’s
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`infringement claims lack substantive strength and are unreasonable. (See id. at 6–7, 8
`(citing Spitz Techs. Corp. v. Nobel Biocare USA LLC, No. SACV1700660JVSJCGX, 2018
`WL 6164300, at *6 (C.D. Cal. June 7, 2018); IPVX Pat. Holdings, Inc. v. Voxernet LLC,
`No. 5:13-CV-01708 HRL, 2014 WL 5795545, at *1 (N.D. Cal. Nov. 6, 2014)); see also
`Reply at 7 n.1).
`Although a grant of summary judgment of non-infringement means that Taction’s
`claims were ultimately unsuccessful, it does not necessarily mean that the case is
`exceptional. See Cellspin Soft, Inc. v. Fitbit, Inc., No. 4:17-CV-05928-YGR, 2022 WL
`17968844, at *3 (N.D. Cal. Oct. 6, 2022) (“[C]laims that are not sufficiently strong to
`survive summary judgment do not necessitate a finding of an exceptional case.”); Universal
`Stabilization Techs., 2018 WL 6181479, at *4 (“Failure to win on summary judgment is
`not a basis for an attorney’s fee award under § 285.”); see also Enovsys LLC v. AT&T
`Mobility LLC, No. CV 11-5210 SS, 2016 WL 3460794, at *12 (C.D. Cal. Feb. 16, 2016)
`(“Even though the Court ultimately disagreed with certain of Enovsys’s contentions on
`summary judgment, it does not necessarily follow that Enovsys’s positions were
`‘objectively baseless’ . . . .”). “The strength of a party’s litigation position is what is
`relevant to an exceptional case determination, not the correctness or success of that
`position.” FireBlok, 855 F. App’x at 739 (citing SFA, 793 F.3d at 1348); see Pac. Coast
`Bldg. Prod., Inc. v. CertainTeed Gypsum, Inc., No. 18-CV-00346-LHK, 2021 WL 75755,
`at *3 (N.D. Cal. Jan. 7, 2021) (“‘[T]he mere fact that the losing party made a losing
`argument is not a relevant consideration; rather, the focus must be on arguments that were
`frivolous or made in bad faith.’”); see also Gaymar Indus., Inc. v. Cincinnati Sub-Zero
`Prod., Inc., 790 F.3d 1369, 1373 (Fed. Cir. 2015) (“[A]s the Supreme Court made clear in
`Octane, fee awards are not to be used ‘as a penalty for failure to win a patent infringement
`suit.’ In other words, fees are not awarded solely because one party’s position did not
`prevail.” (quoting Octane Fitness, 572 U.S. at 548)). As such, in assessing whether the
`case is exceptional under § 285, what matters is whether Taction’s claims were
`/ / /
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`exceptionally weak, not simply the fact that the claims were defeated via a motion for
`summary judgment of non-infringement.
`Considering the totality of the circumstances, this case was a heavily litigated but
`ultimately run-of-the-mill patent case. The case was hard fought and contentious, but
`neither side engaged in any unreasonable or bad faith litigation tactics. Therefore, it is not
`an exceptional case under § 285. See Octane Fitness, 572 U.S. at 555 (explaining that an
`exceptional case is one that “sufficiently set itself apart from mine-run cases” due to
`“subjective bad faith or exceptionally meritless claims”).
`In its Motion, Apple notes that “[t]he Federal Circuit has ‘frequently held that a case
`is exceptional when a party continues to litigate claims that have become baseless in view
`of a district court’s claim construction opinion.’” Clinicomp Int’l, Inc. v. Cerner Corp.,
`No. 17CV02479GPCDEB, 2023 WL 1767008, at *5 (S.D. Cal. Feb. 3, 2023) (quoting
`Innovation Scis., LLC v. Amazon.com, Inc., 842 F. App’x 555, 557 (Fed. Cir. 2021)). But
`that authority is of no help to Apple. In making that argument, Apple relies on an
`inaccurate and distorted view of the record in this action. For example, Apple asserts that
`the Court’s September 28, 2022 Claim Construction Order “gutted [Taction’s]
`infringement theory across every asserted claim.” (Mot. at 2; see also Reply at 1–5.) That
`is inaccurate.
`The Court’s entry of summary judgment of non-infringement was based primarily
`on revised claim constructions that the Court did not issue until the Order on Apple’s
`Motion for Summary Judgment was filed on August 11, 2023.2 (See ECF No. 378 at
`24–42.) It was not based on any of the original claim constructions contained in the Court’s
`September 28, 2022 Claim Construction Order. (See generally ECF No. 141.) Taction’s
`claims for patent infringement and its claim construction arguments in support of those
`claims were not unreasonable or baseless prior to the Court’s entry of those revised claim
`
`
`
`2
`The Court first raised the possibility of the revised claim constructions when the Court issued its
`Tentative Revised Claim Construction Order on July 11, 2023. (ECF Nos. 338, 342.)
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`constructions. See SFA, 793 F.3d at 1348 (“A party’s position on issues of law ultimately
`need not be correct for them to not stand[] out, or be found reasonable.’ ‘Reasonable minds
`can differ as to claim construction positions and losing constructions can nevertheless be
`nonfrivolous.’” (quoting Raylon, LLC v. Complus Data Innovations, Inc., 700 F.3d 1361,
`1368 (Fed. Cir. 2012))). Accordingly, this is not a case where the plaintiff continued to
`litigate claims that became baseless following the issuance of the Court’s original Claim
`Construction Order.3
`Apple also notes that Taction violated Patent Local Rule 3.1(c) by introducing new
`theories of infringement in Dr. Oliver’s expert report. (See Mot. at 8–10; Reply at 5–7.)
`Although the Court held that some of the infringement opinions contained in Dr. Oliver’s
`expert report were improperly disclosed in violation of Patent Local Rule 3.1(c), and the
`Court struck those opinions, Taction’s violation of Patent Local Rule 3.1(c) was not
`egregious and clearly unreasonable. On this issue, Taction reasonably argued that it did
`not need to provide the “how” of the infringement theories at issue because the express
`language of Patent Local Rule 3.1(c) does not include the word “how.” (See ECF No. 333
`
`
`3
`Indeed, Apple’s own litigation conduct in this case supports the notion that Taction’s claims were
`not objectively baseless following the issuance of the Court’s original September 28, 2022 Claim
`Construction Order. An accused infringer’s conduct is a factor that a district court may consider in making
`an exceptionality determination under § 285. See Stone Basket Innovations, LLC v. Cook Med. LLC, 892
`F.3d 1175, 1181 (Fed. Cir. 2018) (“The District Court was well within its discretion to factor in Cook’s
`litigation conduct, because ‘the conduct of the parties is a relevant factor under Octane’s totality-of-the-
`circumstances inquiry, including the conduct of the movant.’” (quoting Gaymar, 790 F.3d at 1373)).
`
`In this case, rather than challenge Taction’s post-claim construction theories of infringement
`
`contained in its final infringement contentions, Apple waited until the pretrial motion cutoff deadline to
`file its Motion for Summary Judgment of non-infringement, and Apple also attempted to evade the Court’s
`page limits when filing its motion. (See ECF No. 295.) If Apple truly believed that Taction’s claims for
`patent infringement were frivolous and objectively baseless, it is highly unlikely that Apple would have
`believed it was necessary to attempt to evade the Court’s page limits to file voluminous pretrial motions
`addressing all of the remaining issues in this case. In sum, Apple’s conduct at the pretrial motion cutoff
`deadline weighs against finding this case to be exceptional. See, e.g., Neville v. Found. Constructors, Inc.,
`No. SACV1702507AGAGR, 2019 WL 8195559, at *1 (C.D. Cal. Dec. 2, 2019) (finding case not
`exceptional where instead of “challeng[ing] Plaintiffs’ final infringement contentions,” “Defendants
`continued litigating the matter, including with highly substantive summary judgment motions on the
`merits of almost all issues in the case”).
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`at 4 n.1.) The Court rejected that argument based on case law within the Southern District
`of California interpreting Patent Local Rule 3.1(c). (See ECF No. 378 at 18 n.4 (citing
`Ameranth, Inc. v. Pizza Hut, Inc., No. 12CV1627 JLS NLS, 2013 WL 3894880, at *8 (S.D.
`Cal. July 26, 2013)).) But that the Court rejected the argument does not mean that it was
`unreasonable or baseless. See Polaris PowerLED Techs., LLC v. VIZIO, Inc., No.
`SACV181571JVSDFMX, 2022 WL 2189607, at *6 (C.D. Cal. Jan. 18, 2022) (“‘Fights
`over the adequacy of infringement and invalidity contentions are commonplace in patent
`litigation and are not inherently indicative of unreasonable conduct.’” (quoting In re
`Protegrity Corp., No. 3:15-MD-02600-JD, 2017 WL 747329, at *6 (N.D. Cal. Feb. 27,
`2017))); Enovsys, 2016 WL 3460794, at *10 (“Even though the Court found that some
`theories in Enovsys’s expert reports were not encompassed by Enovsys’s Infringement
`Contentions, the mere fact that the Court found that a given theory had not been disclosed
`does not necessarily mean that the presentation of the theory, or the theory itself, was
`beyond the range of permissible advocacy.”). Further, although the theories of
`infringement contained in Dr. Oliver’s report were untimely and not properly disclosed
`because they were not included in Taction’s infringement contentions, the theories of
`infringement contained in the report were reasonable and only became clearly
`unmeritorious once the Court issued its revised claim constructions during the summary
`judgment proceedings.4
`
`
`
`4
`These circumstances render this case easily distinguishable from the Clinicomp International, Inc.
`v. Cerner Corp. case cited by Apple. In CliniComp, the patentee presented four different theories of
`infringement, all of which failed under the district court’s original claim constructions. See No.
`17CV02479GPCDEB, 2023 WL 1767008, at *10 (S.D. Cal. Feb. 3, 2023). Here, by contrast, Taction at
`most presented two theories of infringement, one of which was reasonable (although improperly
`disclosed) until the Court issued its revised claim constructions in the Summary Judgment Order.
`
`
`Further, in CliniComp, the plaintiff’s claim for infringement was so weak that the defendant
`prevailed by filing a single, targeted motion for summary judgment of non-infringement challenging the
`plaintiff’s final infringement contentions, prior to the service of expert reports in the case and well before
`the pretrial motion cutoff deadline. See No. 17CV02479GPCDEB, 2022 WL 16985003, at *7 (S.D. Cal.
`Nov. 15, 2022). Here, by contrast, Apple waited until the pretrial motion cutoff deadline and filed
`voluminous pretrial motions challenging a variety of issues, including non-infringement issues.
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`Apple next argues that Taction’s infringement positions related to the “magnets”
`limitation and the Monolithic products were objectively baseless. (See Mot. at 8–10; Reply
`at 8–9.) The Court disagrees. Although the Court did not rule on Taction’s theory of
`infringement as to the Monolithic products in its August 11, 2023 Summary Judgment
`Order, the Court analyzed the issue in preparing for the hearing of Apple’s Motion for
`Summary Judgment. Although the theory was likely not properly disclosed in Taction’s
`infringement contentions, Taction’s theory of infringement under the doctrine of
`equivalents as to the Monolithic products and the “magnets” limitation was reasonable and
`not objectively baseless.
`Apple also argues that Taction’s claim for pre-suit damages was objectively
`baseless, supporting a finding that the case is exceptional. (See Mot. at 11–12; Reply at 9.)
`Again, the Court disagrees with Apple’s characterization of the claim. On June 15, 2023,
`the Court denied Taction’s Motion for Leave to Amend its Complaint, and the Court held
`that Taction’s proposed marking amendment to support its claim for pre-suit damages
`failed as a matter of law. (See ECF No. 318 at 10–21.) Although the Court ultimately held
`that Taction’s proposed marking amendment failed as a matter of law, that does not mean
`that Taction’s claim for pre-suit damages was objectively baseless or frivolous. The
`Court’s analysis of Taction’s proposed marking amendment involved consideration of the
`issue of whether § 287(a) can be applied on a claim-by-claim basis or a patent-by-patent
`basis, which the Federal Circuit itself has noted is “a novel legal issue not squarely
`addressed by . . . past decisions,” Rembrandt Wireless Techs., LP v. Samsung Elecs. Co.,
`853 F.3d 1370, 1384 (Fed. Cir. 2017), and has been the subject of a district court split. (See
`ECF No. 318.) The Court’s decision also involved consideration of the novel issue of
`whether two non-compliant forms of marking might be sufficient when they are combined.
`(See id. at 20.) Although the Court ruled against Taction on these two novel legal issues,
`Taction’s arguments in support of those issues were not unreasonable. See SFA, 793 F.3d
`at 1348 (“A party’s position on issues of law ultimately need not be correct for them to not
`stand[] out, or be found reasonable.”).
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`Finally, Apple argues that Taction’s request for injunctive relief was objectively
`baseless, supporting a finding that the case is exceptional. (See Mot. at 12; Reply at 9.)
`The parties never litigated this issue in this case, and the Court never rendered a decision
`on the issue. The Federal Circuit has “made abundantly clear that district courts have wide
`latitude ‘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.’” Munchkin, Inc. v. Luv n’ Care,
`Ltd., 960 F.3d 1373, 1378 (Fed. Cir. 2020) (quoting Thermolife, 922 F.3d at 1357). The
`Court therefore declines to open up the issue and consider Taction’s request for injunctive
`relief as part of the exceptionality determination in this case. See also, e.g., Enovsys, 2016
`WL 3460794, at *12 (declining to find case exceptional and noting that “[d]rafting [a] few
`sentences simply cannot have posed a particularly heavy burden on [defendant], certainly
`not enough to render this case ‘exceptional’”).
`In sum, Apple won this case, and Taction lost. But the fact that Taction’s claims did
`not survive summary judgment does not mean that its claims were objectively baseless or
`that this case was an exceptional one. As explained above, although ultimately
`unmeritorious, Taction’s claims for patent infringement in this action were reasonable.
`Accordingly, having considered the totality of the circumstances, the Court declines to find
`the case to be exceptional under 35 U.S.C. § 285, and, consequently, DENIES Apple’s
`Motion.
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`CONCLUSION
`For the reasons above, the Court DENIES Apple’s Motion for Attorney’s Fees (ECF
`No. 389).
`IT IS SO ORDERED.
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`Dated: October 17, 2023
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`
`
`_____________________________
`Honorable Todd W. Robinson
`United States District Judge
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