788 F.2d 1536
229 U.S.P.Q. 480
PAPER CONVERTING MACHINE COMPANY, Appellee,
v.
MAGNA-GRAPHICS CORPORATION, Appellant.
Appeal No. 85-2576.
United States Court of Appeals,
Federal Circuit.
April 4, 1986.
Glenn O. Starke, Andrus, Sceales, Starke & Sawall, Milwaukee, Wis., argued, for appellant.
Jerome F. Fallon, Tilton, Fallon, Lungmus & Chestnut, Chicago, Ill., argued, for appellee.
Before RICH, Circuit Judge, NICHOLS, Senior Circuit Judge, and NIES, Circuit Judge.
ORDER
NICHOLS, Senior Circuit Judge.
Paper Converting applies for counsel fees and expenses under 35 U.S.C. Sec. 285, to cover services of counsel with respect to the most recent and presumably last appeal only, fees for previous services having been denied by the district court and no cross-appeal having been taken. The application states that no reasonably prudent party would have appealed as Magna-Graphics did, the most recent appeal again being meant. Our understanding as to our duty in the infrequent case of an application under section 285, to us instead of to the trial court, is stated in Rohm & Haas Company v. Crystal Chemical Company, 736 F.2d 688, 222 U.S.P.Q. (BNA) 97 (Fed.Cir.), cert. denied, --- U.S. ----, 105 S. Ct. 172, 83 L. Ed. 2d 107 (1984).
We believe it is not unjust for Paper Converting to continue to bear its own counsel fees inasmuch as its treble damages award is by definition largely in excess of the actual injury and should also cover counsel fees in whole or in major part. However that may be, the dissent filed in this panel tends to refute the idea that Magna-Graphics was so unreasonable as to render this appeal exceptional. 35 U.S.C. Sec. 285. Therefore, the application is denied.