*1 urges gone way two the district court the other “exceptional.”10 is DGC are finding excep- insufficient bases for reversal under grounds for this case of discretion standard applies abuse tional: part to our review of this of the court’s on the HLA RCA committed fraud standard, judgment. Under DGC evidence, partic- suppressing court in persuade must us that the district court’s ularly proposal; FAA attorney denial of DGC’s fees rested on inequitable guilty con- RCA clearly findings erroneous or a misunder- prosecuting patent in duct Cole standing of the law or that the district by failing bring references certain way court’s decision was in arbitrary some proposal and the FAA to the atten- carry or irrational. Id. DGC has failed to tion of the PTO. heavy burden. The district court twice considered alleged the issue of RCA’s fraud on the IV. opinions carefully HLA wrote two weighing alleged mis evidence of that Conclusion conduct, concluding each time that DGC judgment of the district court for the prove allegations. its failed to district defendant proceedings DGC these but court refused to infer a “fraudulent denying DGC an award of attorney fees is scheme” RCA’s conduct. RCA affirmed. F.Supp. USPQ2d at at Costs party Each
Similarly, shall bear their own the district court held that costs. DGC failed “to a threshold establish show AFFIRMED. ing of RCA’s intent to mislead the PTO.” 474, USPQ2d at Id. at 1320. The district ruling appears anticipated to have holding Kingsdown Medical Consul
tants, Ltd. v. Hollister USPQ2d (Fed.Cir.1988) (in banc), — denied, U.S.-, cert. finding that a ENTERPRISES, COPELANDS’ INC. necessary intent to deceive the PTO is Copelands’ Sports, Appellant, d/b/a charge inequitable sustain a conduct. Contrary argument, to DGC’s we are not opin
led to conclude from the district court CNV, INC., Appellee. ion that the district court believed it could 89-1053, Nos. 89-1079. inequitable only find conduct where there proof subjective wrongful is in direct Appeals, United States Court of part persons acting tent on the for RCA. Federal Circuit.
Rather the court looked at all of the cir 13, 1989. Oct. cumstances, including what RCA did dis close, and concluded that course RCA’s attempted
conduct did not show conceal prior analysis
ment of art. Such Kingsdown,
accord with 863 F.2d at
USPQ2d at 1392.
Simply might because we have reached a might
different result or have affirmed had excep- prevailing party. 10. 35 U.S.C. 285 reads: The court in to the may attorney tional cases award reasonable fees *2 (TTAB or Appeal Board Trial and
mark 16,128 Op- and Board) No. in Cancellation proceeding, 75,373. In each position No. judg- summary partial granted the Board allegation of trademark dismissing an ment misuse, but denied symbol registration trial on scheduled summary judgment and against issues, which, if decided other registration of CNY, preclude would its trademarks. trademark, Regis-
The VUARNET
1,276,815,
eyeglasses, sun-
for
tration No.
reg-
goods
related
was
other
glasses and
8,May
register on
principal
on the
istered
(Pouil-
Pouilloux, S.A.
by Sporoptic
loux),
corporation and the manu-
a French
CNV,
sunglasses.
of
facturer
VUARNET
distributor of
corporation
a domestic
and
by
Pouilloux,
registrant,
as-
the current
January
on
of
signment recorded
registration.
the VUARNET
registration of a
applied for
CNV has
consisting of the words VUARNET
mark
V-shaped de-
FRANCE and
associated
goods.
types
optical
sign for
same
of
the
oppo-
published for
mark was
pending
by
PTO on November
sition
Olson, Lyon
Lyon, Los
Douglas E.
31,1986, Copelands’ Enter-
December
On
appellant.
Cal., argued, for
With
Angeles,
petition with the
(Copelands) filed a
prises
brief,
Nelson.
was Dale
Also
him on the
Patents
Trademarks
and
Commissioner
Jr.,
Meaney,
brief,
Daniel J.
registra-
of the VUARNET
for cancellation
Cal.,
Barbara,
of counsel.
Santa
regis-
opposition to the
and a
tion
notice
Loeb, Paul, Hastings, Janof-
Hamilton
G.
FRANCE. See
tration
VUARNET
D.C., argued,
Walker, Washington,
sky &
1063-1064
U.S.C. §§
brief,
him the
were
appellee. With
for
challenged
pleadings, Copelands
In its
Resnick.
and Allen S.
E.
Karen
Silverman
registration of both marks on
the federal
McKelvey, Of-
F. Drost and Fred
Albín
misused the
grounds that
CNV had
Va.,
Sol., Arlington,
were on
fice of the
registration symbol
connec-
trademark
brief,
curiae.
amicus
for
marks, (2) had not
tion
two
filed
with the
consent of
Vuarnet
the written
Jean
MARKEY,
Judge,
Chief
Before
name,
his
comprising
register marks
NIES, NEWMAN,
RICH,
FRIEDMAN,
gave
dealings
Pouilloux and CNV
ARCHER,
BISSELL,
MAYER
ownership,
assertions of
first
rise to false
MICHEL,
Judges.
Circuit
registered
by Pouilloux
in con-
then
CNV
mark and
VUARNET
ORDER
FRANCE
nection with
VUARNET
ARCHER,
Judge.
addition,
Cope-
into
incorporated
mark.
pleadings is a letter
CNV’s
lands’
appeal arises from the
This consolidated
infringe-
charging Copelands with
States
counsel
United
August 1988 orders
ment,
purchasing
(PTO)
apparently for not
Trade-
Trademark Office
here,
1982. As pertinent
Act of
provement
mark
the VUARNET
goods it sells under
jurisdic-
granted exclusive
these
each of
denied
from CNV. CNV
tion over “an
summary judg-
allegations and moved
Appeal Board.”
Trial and
the Trademark
proceedings.
ment in both
1295(a)(4)(B) (1982).
In this
summary judgment
TTAB denied
we,
essence,
juris-
inherited the
regard,
issues, finding
consent
ownership
*3
of Cus-
United States Court
diction of the
in
genuinely
facts remained
that material
(CCPA),
Appeals
which
toms and Patent
However,
granted par-
the Board
dispute.
Indeed,
with our
was
creation.
abolished
favoring
on
summary
CNV
judgment
tial
opera-
1295(a)(4)(B)
same
uses the
section
were set for
issue. Trial dates
the misuse
(repealed
1542
language as 28 U.S.C.
tive
§
If either were
be
disputed issues.
the
1982)
predecessor.
regarding our
favor,
regis-
Copelands’
federal
in
decided
1295(a)(4)
express
not
preclud- While
does
would be
section
tration of CNV’s marks
finality
however,
appellate
in
review
the
ly premise
on
Copelands,
noticed
ed.
decision,
28 U.S.C.
grant
sum-
the Board’s
Board’s
court from the
this
cf.
(9),
1295(a)(1), (2), (3), (5), (6),
and
proceedings
the
judgment
in both
on
mary
§§
CCPA,
(1982),
the
the
when
with
faced
issue.
misuse
issue,
finality
re
regularly held that
here,
challenged the
has
By motion
CNV
See,
Champion
e.g.,
quired
appeal.
i.e.,
grounds,
that
jurisdictional
appeals on
Univ.,
Prods.,
F.2d
Inc. v. Ohio State
614
summary judgment in
partial
grants of
the
1980)
833,
(CCPA
763, 765,
USPQ
834
204
nonfinal, inter-
below were
proceedings
the
rule,
(“As
‘decision’ means a final
general
a
nonappealable. Because
locutory and
litigation on the
dispositive ruling that ends
raised
importance
question
the
the
Corp. v. Mushroom
Barry
merits.”);
R.G.
unsettled nature
motion
CNV’s
Makers, Inc.,
1002, 1005,
204
609 F.2d
point, we have
jurisprudence
195,
(CCPA 1979) (“This
USPQ
court
197
banc. As
re-
in
Copelands’
taken
‘deci
that
word
repeatedly
has
stated
court,
the Commissioner
quested by this
read ‘final
in
is to
sion’
the statute
be
a
has filed
brief
and Trademarks
Patents
Int’l,
Vapor
v.
”);
Aerco
decision.’
jurisdictional
issue.
curiae amicus
520,
USPQ 882,
518,
F.2d
203
608
(CCPA 1979); Stabilisierungsfonds
884
II
KG,
Fur Wein
Zimmermann-Graeff
Issue
1978).1
154,
USPQ
198
155
summary judg-
partial
May
grant
adoption of the
While the CCPA’s
TTAB,
does not
by the
result
ment
to have been
context seems
rule
this
it,
proceeding
disposition of
before
a
considerations,
it
prudential
bottomed
under 28
to this court
appealed
support both in
strong
nevertheless finds
1295(a)(4)(B)(1982)
1071
and 15 U.S.C. §
§
system,
federal
of the
courts
the tradition
(1988)?
Moore,
Taggart & J.
generally
see
6
W.
J.
Practice
Wicker,
Moore’s
Federal
III
1988),
public
sound
(2d ed.
and in
1154.04[2]
Supreme
by the
policy.
indicated
have
As
by statute can
“Courts created
a final
Court,
party to await
requiring
con
such as the statute
jurisdiction but
no
error in a
Indus.,
all claims of
to raise
v. Colt
486 decision and
fers.” Christianson
“emphasizes
deference
single
2166, 2178,
appeal
800,
L.Ed.2d
U.S.
S.Ct.
Sill,
owe to
trial
appellate courts
(quoting Sheldon
just
(1850)).
judge,”
the obstruction
(8 How.)
concurring. Trade; tional that, holding agree I with this (6) determinations to review final case, no sufficient basis of this the facts Trade States International of the United has been shown. interlocutory appeal Commission ... applying the stan- this conclusion reach review, (7) by appeal questions of Customs and the Court that we dards Secretary of only, findings of the of law traditionally exer- Appeals have Commerce ... the Pat- appeals from cised with section 71 of the of an under See, e.g., Trademark Office. ent and Variety Protection Act Plant Products, Inc. v. Ohio State Champion order or appeal from a of an final USPQ Univ., Systems Pro- decision of the Merit final Hardigg 1980); Toro Co. (CCPA tection Board ... USPQ Industries, Inc., of an Industries, A 1977); SCO final agency of contract of an board Cohen, F.2d Kennedy 1976); Knick 15, 17 (CCPA 955, 189 USPQ Co., Starch Toy v. Faultless erbocker Co. that the pattern clauses shows of these *5 1972). USPQ 417 paragraph of the word “final” omission more, matter this resolves the be
Without (4) no reason not accidental. know in the I concur On that basis fore us. abdicate, for all in advance and for us to judgment. court’s thereby circumstances, flexibility holding today, and its granted. The However, in the court’s I do not concur cases of the rare CCPA implicit criticism of our ruling the text in banc that rewrites appeals, viz. accepted statute; unneces- and does so jurisdictional Toy, adds a Knickerbocker Toro Co. appeals arising sarily. For expressly omitted Con- rigor Office, that was appeals for di- as and Trademark statutory that the gress. must assume We Secretary of Commerce rectly from the Act, designed to allow language Variety Protection the Plant under any special considerations greater accommodate authorizes jurisdictional statute appeals. specific of our these sources for other sources flexibility than added) (emphases appeals: 1295(a)(4) can not mean that This does § 1295(a). States The United indiscriminately to requiring us read as Appeals for the Federal Circuit Court interlocutory appeals. As accept all jurisdiction— shall have exclusive in his brief ami- points out Commissioner decision (1) appeal from a curiae, accepted of an such had cus the CCPA final on section a district court is the Nor rarest occasions. [based] dictum” “the
question whether Gil- not appeals, because applicable decision to PTO appeal from final facts, Coopers its lespie limited to on section has been a district court [based] 463, 477 n. Livesay, 437 U.S. Lybrand & L.Ed.2d 351 2462 n. 98 S.Ct. of an final 1295(a)(4) us allows (1978), but because § Court. States Claims of the United specifically are standards that to establish a decision of— appeal of an PTO. from the adapted Appeals In- (A) the Board of Patent by this position terferences now taken Even on the and Knicker- of Toro court, the criticism (B) of Patents the Commissioner Although Toy is unwarranted. bocker Trademark Trial and or the Trademarks standard, Gillespie applied these cases Appeal Board ... having both cases been decided before Coo
pers Lybrand, we don’t know whether grounds might
there have been other
acceptance appeals. these A sister court appellate
has observed that federal “[n]o knowledge, has to our ever followed Gillespie dictum a case in which the justified could not be on the basis of other, narrower, policy demanding
some de
viation from the rule”. Green v. Commerce,
Dept. (D.C.Cir.1980). grounds traditional Such interlocutory appeals
include under 28 1292(a)(1) grant of orders that or §
deny injunctions or have the effect of granting denying injunctions, or Carson Brands, Inc., 79, 84,
American 993, 996,
101 S.Ct. or
appeals under the collateral order doctrine of Cohen v. Industrial Loan Beneficial 93 L.Ed. (1949). generally Gulfstream
Aerospace Corp. Mayacamas Corp., 485 sum, 1295(a)(4) 28 U.S.C. authorizes greater appellate flexibility as to deci-
sions from the Patent and Trademark Of-
fice, Commissioner, whether from the tribunals, PTO or the district courts under *6 optimum 145 and 146. §§ responsibility exercise of our Bardin, Richard A. Fulwider Patton Rie- to the Office, Patent and Trademark Utecht, Cal., ber Lee & Angeles, of Los reject would not statutory authority. this argued for plaintiff-appellant. With him Craig Bailey. brief was B. Also on
the brief were Leon R. Goodrich and Marko Mrkonich, J. Oppenheimer Wolff & Donnel- ly, Paul, Minn., St. of counsel. Morgan, Neave, Robert C. Fish & New ADVANCED CARDIOVASCULAR SYS- City, argued York defendant-appellee. TEMS, INC., Plaintiff-Appellant, With him on the brief were Kenneth B. Herman, Roberta J. Morris and Robert A. SYSTEMS, INC., SCIMED LIFE Musicant. Defendant-Appellee. No. 89-1043. FRIEDMAN, NEWMAN, Before BISSELL, Judges. Circuit United States Appeals, Court of Federal Circuit. BISSELL, Judge.
Oct. Advanced Systems, Cardiovascular (ACS) appeals the decision of the United States District Court for the District of