United States Court of Appeals 

for the Federal Circuit ______________________ 

NOVA CHEMICALS CORPORATION (CANADA),

NOVA CHEMICALS INC. (DELAWARE),

Plaintiffs-Appellants

v.

DOW CHEMICAL COMPANY,

Defendant-Appellee

______________________ 

2016-1576

______________________ 

Appeal from the United States District Court for the 

District of Delaware in No. 1:13-cv-01601-LPS, Chief 

Judge Leonard P. Stark.

______________________ 

Decided: May 11, 2017

______________________ 

DONALD ROBERT DUNNER, Finnegan, Henderson, 

Farabow, Garrett & Dunner, LLP, Washington, DC, 

argued for plaintiffs-appellants. Also represented by 

MARK J. FELDSTEIN, DARRELL CHRISTOPHER KARL. 

RAYMOND N. NIMROD, Quinn Emanuel Urquhart & 

Sullivan, LLP, New York, NY, argued for defendantappellee. Also represented by WILLIAM ADAMS, CLELAND 

B. WELTON, II; HARRY J. ROPER, AARON A. BARLOW, PAUL 

DAVID MARGOLIS, Jenner & Block LLP, Chicago, IL. 
2 NOVA CHEMICALS CORPORATION v. DOW CHEMICAL COMPANY

______________________ 

Before PROST, Chief Judge, DYK and HUGHES, Circuit 

Judges.

PROST, Chief Judge. 

NOVA Chemicals Corp. (Canada) and NOVA Chemicals Inc. (Delaware) (collectively, “NOVA”) appeal the 

district court’s award of approximately $2.5 million in 

attorney fees to Dow Chemical Co. (“Dow”) under 35 

U.S.C. § 285. NOVA filed the underlying action in equity, 

seeking relief from a prior judgment that it had infringed 

certain Dow patents. The only issue in this appeal is 

whether the district court abused its discretion in finding 

this case exceptional for purposes of § 285. Because it did 

not abuse its discretion, we affirm.

I. BACKGROUND

We provide only a brief summary of the background, 

which is recounted in more detail in our opinions addressing the merits of the underlying patent litigation. See

Dow Chem. Co. v. Nova Chems. Corp. (Canada) (“Dow I”), 

458 F. App’x 910 (Fed. Cir. 2012); see also Dow Chem. Co. 

v. Nova Chems. Corp. (Canada) (“Dow II”), 803 F.3d 620, 

635 (Fed. Cir. 2015), cert. denied, 136 S. Ct. 2452 (2016). 

A 

In 2005, Dow filed an infringement action in the U.S. 

District Court for the District of Delaware, alleging that 

NOVA infringed U.S. Patent No. 5,847,053 and U.S. 

Patent No. 6,111,023 (“the asserted patents”). NOVA

asserted numerous defenses, including arguments that 

the accused product did not infringe and that Dow lacked 

standing to sue because it had transferred ownership of

the asserted patents. The court held a jury trial, followed 

by a bench trial on standing. The district court ultimately 

held that Dow had standing to sue and entered judgment 

against NOVA for over $61 million in damages (“the 2010 
NOVA CHEMICALS CORPORATION v. DOW CHEMICAL COMPANY 3

judgment”). J.A. 442; see also Dow Chem. Co. v. Nova 

Chems. Corp. (Canada), 726 F. Supp. 2d 459 (D. Del. 

2010); Dow Chem. Co. v. Nova Chems. Corp. (Canada), 

No. 05-737-JJF, 2010 WL 3070189 (D. Del. July 30, 2010); 

Dow Chem. Co. v. Nova Chems. Corp. (Canada), No. 05-

737-JJF, 2010 WL 3056617 (D. Del. July 30, 2010). We 

affirmed that judgment on appeal. Dow I, 458 F. App’x at 

921. 

In a separate appeal from the district court’s subsequent award of supplemental damages, we held the 

asserted patent claims to be invalid as indefinite under 

the Supreme Court’s intervening indefiniteness standard 

in Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 

2120 (2014). Dow II, 803 F.3d at 635. Our decision in

Dow II did not disturb the 2010 judgment relating to preverdict infringement. The district court had entered final 

judgment pursuant to Federal Rule of Civil Procedure 

54(b), which NOVA had already paid at the time of the 

second appeal.

During the supplemental-damages phase of the infringement action, NOVA became aware of evidence

allegedly showing that Dow and its counsel had committed fraud on the court in the course of obtaining the 2010 

judgment. By then, however, NOVA was time-barred 

from filing a motion under Federal Rule of Civil Procedure 60(b)(3) to set aside that judgment for fraud, misrepresentation, or misconduct. See Fed. R. Civ. P. 60(c)(1)

(setting a one-year time bar). Accordingly, in September 

2013, NOVA filed a separate action in equity against Dow 

(“the equity action”) for relief from the 2010 judgment. 

In its amended complaint, NOVA alleged two frauds

on the court. First, NOVA asserted with respect to standing that Dow and its counsel had misrepresented Dow’s

ownership of the asserted patents. NOVA based this 

allegation on the testimony of a former Dow tax department employee, Edward Valenzuela, in an unrelated 
4 NOVA CHEMICALS CORPORATION v. DOW CHEMICAL COMPANY

Louisiana tax case (“the Louisiana action”). Mr. Valenzuela testified in that case: “I think [around the end of 

2001] all of Dow’s patents were contributed to an intangible holding company.” J.A. 22554.

Second, NOVA alleged that Dow’s counsel knew or 

should have known of a “scheme to mislead the jury” with 

respect to infringement. J.A. 21055, 21081, 21087, 21089 

(capitalization omitted). In particular, NOVA contended 

that Dow’s expert, Dr. Joao Soares, had provided conflicting testimony about testing on the accused product during

a separate litigation in Canada (the “Canadian action”). 

Dow moved to dismiss the equity action. The court 

granted the motion and dismissed the complaint, holding 

that “[t]here [wa]s fundamentally no adequate allegation 

of the grave miscarriage of justice that is required under 

the extraordinary circumstances” for setting aside a prior 

judgment based on fraud. J.A. 21496. Specifically, the 

court noted that Mr. Valenzuela’s testimony in the Louisiana action was “immaterial and irrelevant” to Dow’s 

standing because the terms of the relevant patent transfer agreement were clear on their face, and Mr. Valenzuela’s testimony “ha[d] nothing to do with the authenticity 

of [the version of] Schedule A” that had been held to be 

the controlling portion of the agreement. J.A. 21497. 

With respect to noninfringement, the district court held 

that NOVA had merely identified “arguably inconsistent 

statements by . . . Dr. Soares” that neither “plausibly 

alleged perjury” nor reached any fact that had been in 

material dispute at trial in the infringement action. J.A. 

21498.

We affirmed the dismissal of the equity action. Nova 

Chems. Corp. (Canada) v. Dow Chem. Co. (“Dow III”), 607 

F. App’x 993 (Fed. Cir. 2015) (Mem.).
NOVA CHEMICALS CORPORATION v. DOW CHEMICAL COMPANY 5

B 

Dow subsequently moved in the district court for 

sanctions, attorney fees, and costs under 35 U.S.C. § 285, 

28 U.S.C. § 1927, and the district court’s inherent sanctioning authority. In opposing the motion, NOVA submitted declarations regarding its pre-suit diligence, which 

allegedly showed it had filed the equity action in good 

faith. 

The district court denied Dow’s motion under 28 

U.S.C. § 1927 and the court’s inherent sanctioning authority. It held that, as demonstrated by the extent of 

pre-suit diligence, NOVA did not file the equity action in

bad faith. Nova Chems. Corp. v. Dow Chem. Co. (“Dow 

IV”), No. 13-1601, 2015 WL 5766257, at *4–5 (D. Del. 

Sept. 30, 2016). The court, however, granted Dow’s 

motion under § 285, which allows courts to award “reasonable attorney fees to the prevailing party” in “exceptional cases.” 35 U.S.C. § 285. The district court did so 

based on the weakness of NOVA’s litigating position and 

the manner in which NOVA pursued this case. Dow IV, 

2015 WL 5766257, at *5–7. In particular, the court 

reiterated that NOVA’s claims for relief “just didn’t stand 

up” and were “not even plausible.” Id. at *6 (internal 

quotation marks omitted); see also id. at *2–3 (reiterating 

the insufficiency of NOVA’s allegations). It also stated

that NOVA “could have dealt with the situation” in “less 

inflammatory ways.” Id. at *5. The court concluded that, 

despite the “high burden” applicable, NOVA “nonetheless 

moved forward with its theories, theories which the 

[c]ourt ultimately found were not even plausible.” Id. at 

*6. 

The district court then awarded Dow nearly $2.5 million in § 285 attorney fees. J.A. 1. NOVA timely appealed. We have jurisdiction under 28 U.S.C. 

§ 1295(a)(1).
6 NOVA CHEMICALS CORPORATION v. DOW CHEMICAL COMPANY

II. DISCUSSION

On appeal, NOVA only challenges the district court’s 

exceptional-case determination under § 285. It does not 

dispute the amount of attorney fees awarded. Nor does it 

dispute that § 285 is applicable. See Dow IV, 2015 WL 

5766257, at *5 n.2 (noting that NOVA did not dispute the 

applicability of § 285 before the district court). 

An exceptional case under § 285 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, LLC v. Icon Health & Fitness, Inc., 134 S. Ct. 

1749, 1756 (2014). “District courts may determine whether a case is ‘exceptional’ in the case-by-case exercise of 

their discretion, considering the totality of the circumstances.” Id. We review “all aspects of a district court’s 

§ 285 determination” for abuse of discretion. Highmark 

Inc. v. Allcare Health Mgmt. Sys., Inc., 134 S. Ct. 1744, 

1749 (2014). “A district court would necessarily abuse its 

discretion if it based its ruling on an erroneous view of the 

law or on a clearly erroneous assessment of the evidence.” 

Id. at 1748 n.2 (quoting Cooter & Gell v. Hartmarx Corp., 

596 U.S. 384, 405 (1990)).

A 

NOVA argues that the district court committed legal 

error, and thus abused its discretion, by looking to

NOVA’s pursuit of the equity action as “[t]he overriding 

factor,” rather than considering the totality of the circumstances, and also erred in finding that the filing of an 

equity action—regardless of its merit—could be subject to 

a fee award. Appellants’ Opening Br. 34. According to 

NOVA, the court improperly viewed NOVA’s pursuit of 

the equity action to be an “extreme[] tactic” and incorrectly suggested that there were “other, less inflammatory 

ways [NOVA] could have dealt with the situation.” Dow 
NOVA CHEMICALS CORPORATION v. DOW CHEMICAL COMPANY 7

IV, 2015 WL 5766257, at *5–6. NOVA acknowledges that 

it faced a “high burden” in the equity action but argues 

that the district court legally erred by relying on the 

extraordinary nature of relief sought to create a “Catch22” situation wherein the mere filing of an independent 

action to set aside a prior judgment would render a case 

exceptional under § 285. Appellants’ Opening Br. 36–38

(internal quotation marks omitted). We agree with NOVA

to the extent that the filing of an action to set aside a 

prior judgment, without more, does not render a case 

exceptional per se. 

Due to the applicable Rule 60(b)(3) time-bar and other 

circumstances, NOVA is correct that the pursuit of a 

separate action in equity was “the only federal court 

option” available for it to set aside the 2010 judgment.1 

Appellants’ Opening Br. 35. Dow submits that rather 

than file the equity action, NOVA could have requested 

additional discovery in the infringement action or filed a 

motion under Federal Rule of Civil Procedure 60(b)(4) on 

grounds that the 2010 judgment was void for lack of 

standing. But those suggestions are unhelpful. Dow 

conceded at oral argument that even armed with additional evidence from further discovery, NOVA would have

still been required to file a separate action to set aside the 

2010 judgment. Oral Argument 17:55–18:36, available at

http://oralarguments.cafc.uscourts.gov/mp3/2016-

1576.mp3. And Dow’s suggestion of filing a Rule 60(b)(4) 

motion relates only to raising a lack of standing; it does 

 

1 Such an action is permitted under Federal Rules 

of Civil Procedure 60(d)(1) and 60(d)(1)(3). See Fed. R. 

Civ. P. 60(d)(1), (3) (stating that Rule 60 “does not limit a 

court’s power to: (1) entertain an independent action to 

relieve a party from a judgment[] . . . or (3) set aside a 

judgment for fraud on the court”).
8 NOVA CHEMICALS CORPORATION v. DOW CHEMICAL COMPANY

not necessarily allow NOVA to also challenge how the 

infringement determination was previously procured.2 

A party whose only option for relief from a prior 

judgment is to file a separate action in equity should not 

be disincentivized from doing so if that party has a plausible basis for relief. Therefore, despite the extraordinary 

nature of relief that NOVA sought, the district court erred 

to the extent it based its exceptional-case determination 

on NOVA’s filing of the equity action itself.

B 

But that does not end our review of the district court’s 

exceptional-case determination. The district court did not 

base its analysis solely, or even primarily, on the fact that 

NOVA filed an equity action. Rather, it expressly relied 

on alternative grounds, holding the case to be “exceptional, both in the substantive strength of NOVA’s litigating 

position and in the manner in which the case was litigated.” Dow IV, 2015 WL 2766257, at *5 (emphases added). 

At a minimum, the court did not abuse its discretion in 

concluding that the case was exceptional due to the substantive strength of NOVA’s litigating position.

The substantive strength of a party’s litigating position can—i.e., whether it is objectively baseless—

independently support an exceptional-case determination. 

See Octane Fitness, 134 S. Ct. at 1756 (“[A]n ‘exceptional’ 

case is simply one that stands out from others with respect to the substantive strength of a party’s litigating 

position . . . or the unreasonable manner in which the case 

was litigated.” (emphasis added)). Thus, “a case presenting . . . exceptionally meritless claims may sufficiently set 

 

2 Dow states in its briefing that a Rule 60(b)(4) motion “would have failed.” Appellee’s Br. 48. It is unclear if 

Dow means that such a motion would have been procedurally improper or failed on the merits.
NOVA CHEMICALS CORPORATION v. DOW CHEMICAL COMPANY 9

itself apart from mine-run cases to warrant a fee award.” 

Id. at 1757. In this regard, “[i]t is the ‘substantive 

strength of the party’s litigating position’ that is relevant 

to an exceptional case determination, not the correctness 

or eventual success of that position.” SFA Sys., LLC v. 

Newegg Inc., 793 F.3d 1344, 1348 (Fed. Cir. 2015) (quoting Octane Fitness, 134 S. Ct. at 1756).

NOVA’s allegations of fraud in this case mainly rested 

on “purportedly conflicting testimony” from the Louisiana 

action and the Canadian action. Dow IV, 2015 WL 

2766257, at *7. But as explained by the district court, the 

arguable inconsistencies in those other actions, even if

proven, were immaterial to the 2010 judgment. We

previously held with respect to standing that, as a legal 

matter, the relevant patent transfer agreement unambiguously provided that Schedule A defined the scope of the 

transfer. Dow I, 458 F. App’x at 914. The district court 

did not abuse its discretion in holding that NOVA had 

failed to sufficiently challenge, based on a generic inconsistent statement, the authenticity of the document held 

to be the operative version of Schedule A. Dow IV, 2015 

WL 2766257, at *2. NOVA’s allegations of fraud regarding the infringement determination are just as baseless, if 

not more. As the district court observed, Dr. Soares’s 

testimony in the Canadian action was not necessarily 

inconsistent with his prior infringement testimony and, in 

any event, did not directly relate to the limitation that 

had been the focus of the parties’ underlying infringement 

dispute. Id. The district court therefore did not abuse its 

discretion in holding that NOVA’s litigating position was 

objectively baseless. 

NOVA contends that the district court “compound[ed] 

its error” by relying on the extensiveness of NOVA’s presuit investigation to support the exceptional-case determination. Appellants’ Opening Br. 38. The court pointed 

out that NOVA’s pre-suit diligence “confirm[ed] the extraordinary nature of this case.” Dow IV, 2015 WL 
10 NOVA CHEMICALS CORPORATION v. DOW CHEMICAL COMPANY

5766257, at *6. To the extent the district court relied on

NOVA’s extensive pre-suit diligence to support an exceptional-case finding, doing so would appear counterintuitive. In context, though, we think the better reading is

that the district court properly relied on the extensiveness 

of NOVA’s pre-suit diligence to confirm NOVA’s high 

burden and the gravity of its allegations. The court did 

not rely on the pre-suit diligence itself as an independent 

basis to find the case exceptional. It later clarified that

even though NOVA’s pre-suit diligence “undercut[] Dow’s 

assertion” of bad faith, “it d[id] nothing to sway the [c]ourt 

to find that this case [wa]s not exceptional.” Id. We 

agree, as a general matter, that the extent of a party’s 

pre-suit investigation or how fervently it believed in its 

allegations does not affect the objective strength of that 

party’s litigating position.

At a minimum, the district court did not abuse its discretion in holding that NOVA’s litigating position was 

objectively baseless.

C 

NOVA also argues that the district court legally erred 

by “consider[ing] this case in comparison to the full panoply of patent cases.” Id. at *7. According to NOVA, the 

court should have considered whether the equity action 

stood out from other actions to set aside a prior judgment, 

rather than considering whether the equity action stood 

out from other patent cases more generally. Otherwise, it 

contends, an action to set aside a prior judgment would

always be exceptional because, “[b]y necessity,” it would

“stand out” from the traditional patent infringement 

case.” Appellants’ Opening Br. 40. NOVA’s argument is 

unavailing.

NOVA fails to cite any legal precedent to support its 

position that a district court’s baseline for comparison is

so restricted in a § 285 analysis. Oral Argument 0:32–

2:29. One could always search for more similar cases for 
NOVA CHEMICALS CORPORATION v. DOW CHEMICAL COMPANY 11

comparison. Taken to its logical conclusion, continuing to 

narrow the universe of comparators to cases resolved on 

similar procedural postures, legal grounds, or facts would 

leave few or no comparators remaining. We decline to 

hold that the district court erred in comparing this case to 

other patent cases more generally. 

Any concern regarding the district court’s comparison 

is tempered because, again, it did not hold that this case 

stood out merely because NOVA requested that a prior 

judgment be set aside for fraud whereas many other 

patent cases do not present such circumstances. The

equity action was a direct extension of, and intertwined 

with, the prior infringement action.3 Requiring the 

district court in this circumstance to narrow its comparison to other independent actions requesting relief from 

judgment would run counter to the Supreme Court’s 

general instruction that “[d]istrict courts may determine 

whether a case is ‘exceptional’ in the case-by-case exercise 

of their discretion, considering the totality of the circumstances.” Octane Fitness, 134 S. Ct. at 1756. The district 

court therefore did not commit reversible error in comparing this case to patent cases more generally.

We have considered NOVA’s remaining arguments 

and find them unpersuasive.

III. CONCLUSION

For the foregoing reasons, the district court did not 

abuse its discretion in determining, under the totality of 

 

3 But for the relevant time-bar, NOVA may have 

filed its request to set aside the 2010 judgment through a 

Rule 60(b)(3) motion, in which case its argument for 

excising patent infringement cases from the universe of 

§ 285 comparators would lose considerable, if not all, 

force.
12 NOVA CHEMICALS CORPORATION v. DOW CHEMICAL COMPANY

the circumstances, that this case was exceptional under 

§ 285.

AFFIRMED.

COSTS

Costs to Appellee.