concurring in part.
I join in affirming the judgment of the district court, but I would not impose the Rule 38 sanction.
The defendants chose not to contest validity or infringement, and represent that all infringing activities have ceased. Plaintiff sought judicial action to ensure that they will remain ceased. I do not think it was improper to ask. Further, the notice issue was not black-and-white, especially with respect to the method claims, and neither side abstained from questionable maneuvers concerning discovery. I do not think that appellant’s request for our review, although admittedly a lost cause, was so villainous as to justify the level of castigation heaped upon it.
The eye of the bench falls upon many erroneous, inartful, specious, often exotic arguments, perhaps the last gasp of an appellant facing the awesome burden of an appeal, and set against the sweet reason with which the appellee supports the judgment appealed from. Appellant’s counsel should not be personally impugned for taking an appeal, as of right, and presenting losing arguments, as here.