Case: 19-2443 Document: 50 Page: 1 Filed: 04/12/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HORATIO WASHINGTON DEPOT TECHNOLOGIES
LLC,
Plaintiff-Appellee
v.
TOLMAR, INC., TOLMAR PHARMACEUTICALS,
INC., TOLMAR THERAPEUTICS, INC.,
Defendants-Appellants
______________________
2019-2443
______________________
Appeal from the United States District Court for the
District of Delaware in No. 1:17-cv-01086-LPS, Chief Judge
Leonard P. Stark.
______________________
Decided: April 12, 2021
______________________
JEFFREY R. GARGANO, Morgan, Lewis & Bockius LLP,
Chicago, IL, for defendants-appellants. Also represented
by ZACHARY DAVID MILLER; KEVIN SHORTSLE, Akerman
LLP, Chicago, IL.
______________________
Before PROST, Chief Judge, PLAGER and CHEN, Circuit
Judges.
Case: 19-2443 Document: 50 Page: 2 Filed: 04/12/2021
2 HORATIO WASHINGTON DEPOT TECH. v. TOLMAR, INC.
PER CURIAM.
Tolmar, Inc., Tolmar Pharmaceuticals, Inc., and Tol-
mar Therapeutics, Inc. (collectively, “Tolmar”) appeal the
district court’s denial of its motion for attorney fees under
35 U.S.C. § 285. Finding no error warranting correction,
we affirm.
Tolmar raises three primary arguments on appeal, of
which none are persuasive. First, Tolmar contends that
the district court applied the wrong legal test by focusing
on limited portions of the case, rather than the totality of
the circumstances. However, the record reflects that the
district court properly evaluated the totality of the circum-
stances consistent with the law. We cannot fault the court
for doing its job by discussing some specifics of the case as
part of that totality analysis. 1 Second, Tolmar contends
that the district court required a showing of bad faith for
exceptionality, but again, Tolmar is mistaken. The district
court discussed bad faith only as part of its totality analy-
sis. It never transformed bad faith into an outcome-deter-
minative factor. Third and finally, Tolmar argues that the
district court engaged in a clearly erroneous assessment of
the evidence, given the conduct of Tolmar’s opponent, Ho-
ratio Washington Depot Technologies LLC (“Horatio”). As
the district court noted, much of Horatio’s conduct was po-
tentially concerning, but we are not convinced—given the
standard of review and the district court’s detailed
1 “The district court must determine whether the
conduct, isolated or otherwise, is such that when consid-
ered as part of and along with the totality of circumstances,
the case is exceptional, i.e., the case stands out among oth-
ers with respect to the substantive strength of a party’s lit-
igating position or the unreasonable manner in which the
case was litigated.” Intellectual Ventures I LLC v. Trend
Micro Inc., 944 F.3d 1380, 1384 (Fed. Cir. 2019).
Case: 19-2443 Document: 50 Page: 3 Filed: 04/12/2021
HORATIO WASHINGTON DEPOT TECH. v. TOLMAR, INC. 3
consideration of these issues—that the court abused its dis-
cretion. 2
For the foregoing reasons, we affirm the final decision
of the district court.
AFFIRMED
2 “‘We review all aspects of a district court’s § 285 de-
termination for an abuse of discretion’ . . . . An abuse of
discretion occurs when, inter alia, the district court ‘base[s]
its ruling on an erroneous view of the law or on a clearly
erroneous assessment of the evidence.’” Rothschild Con-
nected Devices Innovations, LLC v. Guardian Prot. Servs.,
Inc., 858 F.3d 1383, 1387 (Fed. Cir. 2017) (citations omit-
ted).