United States Court of Appeals for the Federal Circuit 

2006-1222, -1223, -1270 

PROPAT INTERNATIONAL CORP., 

Plaintiff/Counterclaim DefendantAppellant, 

and 

DAVID FINK and HELENE GLASSER, 

 Counterclaim Defendants, 

v. 

RPOST, INC. and RPOST US, INC., 

Defendant/Counterclaimant-Cross 

Appellant, 

and 

RPOST INTERNATIONAL LIMITED, ZAFAR KHAN, 

KENNETH BARTON and TERRANCE TOMKOW, 

 Defendants-Cross Appellants. 

 Timothy W. Johnson, Law Office of Timothy W. Johnson, of Houston, Texas, 

argued for plaintiff/counterclaim defendant-appellant. 

 Henry Ben-Zvi, Ben-Zvi & Associates, of Santa Monica, California, argued for 

defendant/counterclaimant-cross appellant and defendants-cross appellants. 

Appealed from: United States District Court for the Central District of California 

Judge James V. Selna 
United States Court of Appeals for the Federal Circuit

2006-1222,-1223,-1270 

PROPAT INTERNATIONAL CORP., 

Plaintiff/Counterclaim DefendantAppellant, 

and 

DAVID FINK and HELENE GLASSER, 

 Counterclaim Defendants, 

v. 

RPOST, INC. and RPOST US, INC., 

 Defendant/Counterclaimant-Cross 

 Appellant, 

and 

RPOST INTERNATIONAL LIMITED, ZAFAR KHAN, 

KENNETH BARTON and TERRANCE TOMKOW, 

 Defendants-Cross Appellants. 

___________________________ 

DECIDED: January 4, 2007 

___________________________ 

Before NEWMAN, MAYER, and BRYSON, Circuit Judges. 

BRYSON, Circuit Judge. 

This “patent standing” case calls on us to decide once again whether a party has 

a sufficient ownership interest in a patent to be entitled to sue for infringement. The 

plaintiff, Propat International Corporation, sued RPost, Inc.; RPost US, Inc.; RPost 
2006-1222,-1223,-1270 2 

International Limited; and three individuals (collectively, “RPost”) in the United States 

District Court for the Central District of California. Propat charged RPost with infringing 

U.S. Patent No. 6,182,219 (“the ’219 patent”). That patent, entitled “Apparatus and 

Method for Authenticating the Dispatch and Contents of Documents,” was assigned to 

Authenticational Technologies Ltd. (“Authentix”) by the inventors. After the district court 

resolved several issues relating to the merits of the lawsuit, the parties filed crossmotions addressing the question whether Propat had standing to bring the action in its 

own name. 

The district court issued an opinion holding that Propat is not the owner of the 

patent and thus does not have standing to sue. Focusing on a May 2002 agreement 

between Propat and Authentix, the court ruled that the agreement does not transfer all 

substantial rights in the patent to Propat but instead merely makes Propat a bare 

licensee under the patent. Because Propat has no proprietary interest in the patent, the 

court held that Propat lacks standing to sue infringers even with the patent owner, 

Authentix, joined as a party-plaintiff. Accordingly, the district court did not rule on 

Propat’s request to join Authentix, but dismissed the action without prejudice. 

Following the dismissal, RPost moved for an award of attorney fees and costs. 

RPost asserted that the case was “exceptional” within the meaning of the fee-shifting 

provision of the Patent Act, 35 U.S.C. § 285, and that, based on litigation misconduct by 

Propat, an award of fees and costs was justified under the district court’s inherent 

authority and under 28 U.S.C. §§ 1927 and 1919. The district court issued an opinion 

analyzing and denying each of RPost’s claims. 
2006-1222,-1223,-1270 3 

Propat appeals from the order of dismissal, and RPost cross-appeals from the 

denial of an award of attorney fees and costs. We affirm the district court’s decision that 

Propat lacks standing to sue for infringement of the ’219 patent even with Authentix as 

an additional party to the action. On the cross-appeal, we affirm the district court’s 

order denying RPost’s request for an award of fees and costs. 

I 

 We have addressed the issue of standing in patent cases on a number of 

occasions. The governing principles are now reasonably clear. The Patent Act 

provides that “[a] patentee” is entitled to bring a civil action “for infringement of his 

patent.” 35 U.S.C. § 281. The term “patentee” includes “not only the patentee to whom 

the patent was issued but also the successors in title to the patentee.” Id. § 100(d). 

Those provisions of the Patent Act have been interpreted to require that a suit for 

infringement of patent rights ordinarily be brought by a party holding legal title to the 

patent. Sicom Sys. Ltd. v. Agilent Techs., Inc., 427 F.3d 971, 976 (Fed. Cir. 2005); 

Rite-Hite Corp. v. Kelley Co., 56 F.3d 1538, 1551 (Fed. Cir. 1995) (en banc); Abbott 

Labs. v. Diamedix Corp., 47 F.3d 1128, 1130 (Fed. Cir. 1995). 

Even if the patentee does not transfer formal legal title, the patentee may effect a 

transfer of ownership for standing purposes if it conveys all substantial rights in the 

patent to the transferee. In that event, the transferee is treated as the patentee and has 

standing to sue in its own name. See, e.g., Speedplay, Inc. v. Bebop, Inc., 211 F.3d 

1245, 1250 (Fed. Cir. 2000); Vaupel Textilmaschinen KG v. Meccanica Euro Italia 

S.P.A., 944 F.2d 870, 875 (Fed. Cir. 1991). 
2006-1222,-1223,-1270 4 

A 

 Propat first argues that the May 2002 agreement grants it a sufficient interest in 

the patent to entitle it to sue for infringement in its own name, without naming Authentix 

as a co-plaintiff. Because it is undisputed that Authentix is the party with legal title to 

the patent, Propat is entitled to sue in its own name alone, without Authentix’s 

participation, only if Authentix has transferred to Propat all substantial rights in the 

patent. In order to determine whether Authentix has done so, we must look to the 

agreement between the parties and analyze the respective rights allocated to each 

party under that agreement. See Aspex Eyewear, Inc. v. Miracle Optics, Inc., 434 F.3d 

1336, 1340 (Fed. Cir. 2006); Mentor H/S, Inc. v. Med. Device Alliance, Inc., 240 F.3d 

1016, 1017 (Fed. Cir. 2001); Vaupel, 944 F.2d at 874. 

In relevant summary, the agreement between Propat and Authentix gives Propat 

the responsibility to license the patent to third parties, to enforce the licensing 

agreements, and to sue infringers. In exchange, the agreement gives Propat a defined 

percentage share of the proceeds of the licensing royalties and of any judgment or 

settlement arising out of litigation. As part of the agreement, Propat undertakes “to 

consult with and obtain prior approval” from Authentix for the selection of any potential 

targets for licensing or suit, although the agreement provides that Authentix may not 

unreasonably withhold or delay such approval. The agreement further provides that 

Authentix may terminate the agreement if Propat breaches the agreement, becomes 

bankrupt or insolvent, fails to obtain certain levels of income from the patent, or ceases 

to be actively engaged in licensing or litigation efforts. The agreement forbids Propat 

from assigning its rights and obligations under the agreement without the consent of 
2006-1222,-1223,-1270 5 

Authentix, which consent Authentix may freely withhold. Finally, the agreement 

provides that Authentix will consent to be joined as a party to any action brought by 

Propat if a court requires it to be joined, although in such a case Propat must provide 

counsel for Authentix and defray all the expenses Authentix may incur in connection 

with its involvement in the litigation. 

 The agreement contemplates that Propat will be engaged in licensing and 

litigation. It does not explicitly address whether Propat enjoys a license to practice the 

patent. Similarly, it does not explicitly state whether Authentix retains the right to 

practice the patent. 

 The parties take diametrically opposing views of the consequences of the 

agreement for purposes of determining Propat’s standing as a plaintiff in this case. 

Propat argues that the district court was wrong to dismiss the action, because the 

agreement gives Propat all substantial rights in the patent and thus is the functional 

equivalent of an assignment of the patent from Authentix. Accordingly, Propat contends 

that it should be treated as the “patentee” and that it is therefore entitled to bring this 

action without naming Authentix as a co-plaintiff. RPost, on the other hand, argues not 

only that Propat is not the “patentee,” but also that Propat has no proprietary rights in 

the patent at all and instead is only a bare licensee. For that reason, RPost argues, 

Propat has no right to participate in this action as a plaintiff and the district court 

properly dismissed the action for lack of jurisdiction. 

 The district court first found that the agreement does not assign to Propat the 

right to make, use, and sell the patented invention. Instead, the court concluded, Propat 

“merely has a right to enforce or license other parties to use, manufacture, or sell” the 
2006-1222,-1223,-1270 6 

invention. Second, the court concluded that the right granted to Propat with respect to 

the invention is not exclusive, because Authentix retains the right to seek new patents 

on the underlying invention and therefore retains an implicit right to use the invention. 

Finally, the court found that Propat’s power to assign its rights under the agreement is 

entirely subject to Authentix’s consent, which “Authentix can withhold . . . even 

arbitrarily.” In light of the various rights retained by Authentix, the court found that 

Propat “was not transferred all substantial rights and, as such, has no standing to sue 

on its own behalf.” 

 We agree with the district court. Authentix retains sufficient rights in the patent 

that it cannot be said to have assigned “all substantial rights” in the patent to Propat. To 

begin with, the agreement expressly provides that Authentix is, and will continue to be, 

the owner of the patent. The agreement identifies Authentix as the “owner of various 

technology,” including the ’219 patent. Moreover, the agreement provides that 

Authentix is responsible to “maintain any . . . patents [it] owns or controls . . . each for its 

full term,” a provision that clearly includes the ’219 patent. The responsibility to 

maintain a patent is one of the obligations that has been recognized by this court as an 

indication that the party with that obligation has retained an ownership interest in the 

patent. Mentor H/S, 240 F.3d at 1018. 

In addition, Authentix retains an economic interest in the patent and a substantial 

measure of control over decisions affecting the patent rights. It enjoys an equity interest 

in the proceeds of licensing and litigation activities, a right to notice of licensing and 

litigation decisions and the right to veto such decisions as long as the veto power was 

not exercised unreasonably, and the unrestricted power to bar Propat from transferring 
2006-1222,-1223,-1270 7 

its interest in the patent to a third party. In no case has this court held that a patentee 

who retains such broad and wide-ranging powers with respect to a patent has 

nonetheless transferred “all substantial rights” in the patent. 

To be sure, the fact that a patent owner has retained a right to a portion of the 

proceeds of the commercial exploitation of the patent, as Authentix has done in this 

case, does not necessarily defeat what would otherwise be a transfer of all substantial 

rights in the patent. See Rude v. Westcott, 130 U.S. 152, 162-63 (1889); Vaupel, 944 

F.2d at 875. Nonetheless, the fact that Authentix retains a substantial share of the 

proceeds is consistent with Authentix’s retaining ownership rights in the patent, while 

allocating to Propat the duty to provide licensing and enforcement services. 

Authentix’s right to veto licensing and litigation decisions also constitutes a 

significant restriction on Propat’s interest in the patent. Although Authentix may decline 

to consent to Propat’s decisions only if it does so reasonably, Propat’s obligation to 

notify Authentix as to the selection of all targets for licensing or suit and to obtain 

Authentix’s consent to all such decisions indicates that Authentix retains substantial 

ongoing control of the sort typically associated with the retention of an ownership 

interest in the patent. See Sicom Sys., 427 F.3d 971, 979 (Fed. Cir. 2005); Intellectual 

Prop. Dev., Inc. v. TCI Cablevision of Cal., Inc., 248 F.3d 1333, 1345 (Fed. Cir. 2001). 

Authentix’s right to veto any transfer of Propat’s rights under the agreement is 

particularly significant, the more so because the agreement expressly indicates that 

Authentix is free to veto any such transfer decision, even if it does so “arbitrarily.” The 

right to dispose of an asset is an important incident of ownership, and such a restriction 

on that right is a strong indicator that the agreement does not grant Propat all 
2006-1222,-1223,-1270 8 

substantial rights under the patent. See Sicom Sys., 427 F.3d at 979; Intellectual Prop.

Dev., 248 F.3d at 1345; Abbott Labs., 47 F.3d at 1132. In fact, the court in Sicom 

Systems referred to the restraint on transferability of the rights under the agreement as 

“fatal” to the argument that the agreement transferred all substantial rights in the patent. 

427 F.3d at 979. 

Finally, if Propat fails to meet certain specified benchmarks in its efforts to exploit 

the patent, Authentix is free to terminate the contract, at which point all of Propat’s rights 

with respect to the patent come to an end. Authentix’s power to terminate the 

agreement and end all of Propat’s rights in the patent if Propat fails to perform up to the 

specified benchmarks, although not dispositive, is yet another indication that Authentix 

retains a significant ownership interest in the patent. 

 The rights allocated to Propat under the agreement are not sufficiently 

substantial to make Propat in effect the assignee of the patent. It has long been held 

that a “right to sue” clause in a contract, unaccompanied by the transfer of other 

incidents of ownership, does not constitute an assignment of the patent rights that 

entitles the transferee to sue in its own name. See Indep. Wireless Tele. Co. v. Radio 

Corp. of Am., 269 U.S. 459, 474-75 (1926); Crown Die & Tool Co. v. Nye Tool & Mach. 

Works, 261 U.S. 24, 35-36 (1923); Textile Prods., Inc. v. Mead Corp., 134 F.3d 1481, 

1485 (Fed. Cir. 1998); Ortho Pharm. Corp. v. Genetics Inst., Inc., 52 F.3d 1026, 1034 

(Fed. Cir. 1995). That principle sensibly reflects that a patent owner may give another 

responsibility to select targets for suit—a power of attorney, in effect—without 

surrendering ownership of the patent. The same principle applies to Propat’s right to 

select licensees. While the rights to sue and grant licenses accord Propat broad 
2006-1222,-1223,-1270 9 

authority to act as Authentix’s agent for purposes of licensing and litigation, they do not 

transfer ownership of Authentix’s patent. See Penril Datacomm Networks, Inc. v. 

Rockwell Int’l Corp., 934 F. Supp. 708 (D. Md. 1996) (patent marketing agent does not 

have proprietary interest in patent for purposes of determining standing to sue). 

Propat relies heavily on two of this court’s decisions, Vaupel and Speedplay. In 

those cases, the court held that the agreements in question effected the transfer of all 

substantial rights in the patent at issue. Each of those cases, however, is 

distinguishable. In Vaupel, the patentee did not retain any rights to control the 

licensee’s exercise of its right to sue; the patentee retained only the right to be informed 

of the course of litigation on the patent. 944 F.2d at 875. In Speedplay, the exclusive 

licensee had complete effective control over litigation decisions, and the patentee did 

not have the right to veto the licensee’s decision to transfer its rights under the 

agreement. 211 F.3d at 1250. In this case, by contrast, the patentee must be 

consulted about and consent to licensing and litigation decisions, and it retains an 

absolute right to prevent assignment of the licensee’s interests. 

The facts of this case are closer to those in Intellectual Property Development, 

Inc. v. TCI Cablevision of California, Inc., 248 F.3d 1333 (Fed. Cir. 2001), in which we 

held that the agreement between a patentee and an exclusive licensee did not transfer 

all substantial rights in the patent and therefore did not confer on the exclusive licensee 

the right to sue on the patent in its own name alone. In that case, the patentee granted 

the plaintiff an exclusive license and the right to sue infringers, but it retained certain 

rights in the patent. Those retained rights included the right in certain circumstances to 

require the exclusive licensee to obtain the patentee’s consent to sue; the right in other 
2006-1222,-1223,-1270 10 

cases to be informed of, and consulted about, litigation; the right to consent to 

settlements of litigation (which consent could not be unreasonably withheld); the right to 

a 50 percent share of the proceeds of litigation; and the right to prevent the exclusive 

licensee from assigning its rights under the agreement. Those rights are similar to the 

rights retained by Authentix, except that in this case there was no conveyance of an 

exclusive license to make, use, and sell the invention. Accordingly, as in Intellectual 

Property Development, we hold that the district court was correct to conclude that 

Authentix has not conveyed all substantial rights in the patent to Propat. For that 

reason, Propat lacks standing to sue for infringement in the absence of Authentix. 

B 

In the alternative, Propat argues that even if it is not the owner of all substantial 

rights in the ’219 patent, the trial court should not have dismissed the complaint, but 

instead should have granted its request to add Authentix as a party and then permitted 

the action to continue. The district court, however, concluded that Propat lacks a 

sufficient interest in the patent to give it standing to sue even as a co-plaintiff and 

therefore dismissed the action without acting on Propat’s request to join Authentix. The 

court reasoned that Propat’s status is that of a bare licensee with no ownership interest 

in the patent and no right to participate in the infringement action. 

A party that is neither the legal owner of the patent nor the transferee of all 

substantial rights in the patent still has standing to sue for infringement if that party has 

a legally protected interest in the patent created by the Patent Act, so that it can be said 

to suffer legal injury from an act of infringement. See Intellectual Prop. Dev., 248 F.3d 

at 1345-46. An exclusive licensee is considered to have such an interest. Unlike the 
2006-1222,-1223,-1270 11 

patentee or the transferee of all substantial rights in the patent, however, an exclusive 

licensee ordinarily may not sue in its own name alone, but must join the patent owner in 

an action brought against an accused infringer. See Indep. Wireless, 269 U.S. at 464, 

468-69, 473-74; Waterman v. Mackenzie, 138 U.S. 252, 255 (1891); Textile Prods., 134 

F.3d at 1484; Abbott Labs., 47 F.3d at 1131. 

In Independent Wireless, the Supreme Court explained the rule regarding 

exclusive licensees as follows: 

The owner of a patent, who grants to another the exclusive right to make, 

use, or vend the invention, which does not constitute a statutory 

assignment, holds the title to the patent in trust for such a licensee, to the 

extent that he must allow the use of his name as plaintiff in any action 

brought at the instance of the licensee in law or in equity to obtain 

damages for the injury to his exclusive right by an infringer. 

269 U.S. at 469. This court has characterized the rule in Independent Wireless as 

meaning that an exclusive licensee has a sufficient interest in the patent to have 

standing to sue under Article III of the Constitution. See Intellectual Prop. Dev., 248 

F.3d at 1346-47 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)); 

Prima Tek II, L.L.C. v. A-Roo Co., 222 F.3d 1372, 1377 (Fed. Cir. 2000). We explained 

that the requirement that the exclusive licensee must normally join the patent owner in 

any suit on the patent is a “prudential” requirement, not a constitutional requirement 

based on Article III limitations, and that an action brought by the exclusive licensee 

alone may be maintained as long as the licensee joins the patent owner in the course of 

the litigation. Intellectual Property Dev., 248 F.3d at 1348; Mentor H/S, Inc., 240 F.3d at 

1019. 

By contrast, a bare licensee, i.e., a party with only a covenant from the patentee 

that it will not be sued for infringing the patent rights, lacks standing to sue third parties 
2006-1222,-1223,-1270 12 

for infringement of the patent. Thus, an infringement action brought by a bare licensee 

must be dismissed. A bare licensee cannot cure its lack of standing by joining the 

patentee as a party. Intellectual Prop. Dev., 248 F.3d at 1348-49; Textile Prods., 134 

F.3d at 1485; Abbott Labs., 47 F.3d at 1131; Kalman v. Berlyn Corp., 914 F.2d 1473, 

1481 (Fed. Cir. 1990); Weinar v. Rollform Inc., 744 F.2d 797, 807 (Fed. Cir. 1984). 

This case does not fit neatly within either of those two categories. As noted, it 

appears from the agreement that the parties did not envision that Propat would practice 

the patent, but instead contemplated that Propat would be involved only in licensing and 

litigation. The agreement is accordingly silent as to Propat’s rights to practice the 

patent, whether exclusively or otherwise, and focuses instead on Propat’s rights to 

license the patent and sue for its infringement. 

In this setting, we look for guidance to the Supreme Court’s decision in Crown 

Die & Tool Co. v. Nye Tool & Machine Works, 261 U.S. 24 (1923). There, a patent 

owner sought to assign to another party the right to sue a competitor for infringement of 

the patent. The Court, however, refused to recognize an assignment of the right to sue 

on a patent separate from the conveyance of a proprietary interest in the patent. Id. at 

34-36. The Court explained that if it were permissible for the patentee to retain 

ownership of the patent but to assign to others the right to sue infringers, “it would give 

the patentee an opportunity without expense to himself to stir up litigation by third 

persons.” Id. at 39. Because the attempted assignment of the right to sue for 

infringement “carried no part of the title to the patent or interest in it,” the Court held that 

it “conferred no right to sue for damages for infringement of the patent after execution of 

the [assignment].” Id.
2006-1222,-1223,-1270 13 

It is true that Propat has more rights with respect to the patent than did the 

assignee in Crown Die. Unlike the assignee in Crown Die, Propat’s right to sue is not 

limited to a particular infringer, and Propat also has an express right to license the 

patent, albeit one that is subject to Authentix’s consent. But the principles underlying 

the Court’s analysis in Crown Die are equally applicable here and dictate the same 

result. The Court in Crown Die refused to permit the right to sue to be segregated from 

formal ownership of the patent, with the very narrow exceptions previously recognized, 

including the right accorded to exclusive licensees. In this case, Propat lacks important 

indicia of a true ownership interest in the patent, such as the right to transfer its interest. 

Under the May 2002 agreement, Propat is not allowed to assign its interests under the 

agreement without Authentix’s consent, which can be withheld on any ground. 

Moreover, as noted, Propat must provide Authentix with notice and obtain Authentix’s 

consent to its selection of targets for licensing and suit. And the agreement requires 

Propat to “use reasonable efforts consistent with prudent business practices” in its 

licensing and enforcement efforts, a provision that is more consistent with the status of 

an agent than a co-owner. We therefore agree with the district court that Propat’s rights 

created by the May 2002 agreement did not accord it rights in the patent sufficient to 

give it standing to sue, even with Authentix named as a co-plaintiff. Accordingly, we 

uphold the district court’s decision dismissing Propat’s action without prejudice for lack 

of jurisdiction. 

II 

In its cross-appeal, RPost argues that the district court abused its discretion by 

failing to award it attorney fees and costs. RPost argues that (1) the district court 
2006-1222,-1223,-1270 14 

should have found the case to be “exceptional” under 35 U.S.C. § 285 and should have 

awarded attorney fees under that statute because “Propat’s lack of standing was 

manifest” and because of litigation misconduct by Propat; (2) the district court should 

have granted fees and costs under 28 U.S.C. § 1927, which authorizes such relief if an 

attorney “multiplies the proceedings in any case unreasonably and vexatiously”; and (3) 

the court should have awarded costs to RPost under 28 U.S.C. § 1919, which allows a 

court to “order the payment of just costs” whenever a suit is dismissed by a district 

court. 

 The trial court addressed RPost’s request for fees and costs and analyzed 

RPost’s various claims in substantial detail. At the conclusion of its opinion, the court 

declined to award fees and costs against Propat. The district court’s decision to deny 

fees and costs is reviewable for abuse of discretion. See Stephens v. Tech Int’l, Inc., 

393 F.3d 1269, 1273 (Fed. Cir. 2004) (“exceptional case” determination under section 

285 reviewed for clear error; decision whether to award fees reviewed for abuse of 

discretion); Gomez v. Vernon, 255 F.3d 1118, 1134-35 (9th Cir. 2001) (section 1927 

sanction decisions reviewed for abuse of discretion); Neal & Co. v. United States, 121 

F.3d 683, 684 (Fed. Cir. 1997) (denial of award of costs reviewed for abuse of 

discretion). In light of the district court’s careful analysis of each of RPost’s various 

claims, we are satisfied that the court did not abuse its discretion in denying an award of 

fees and costs. 

First, it was reasonable for the court to conclude that the error in failing to name 

Authentix as a party plaintiff did not render this action “exceptional” within the meaning 

of 35 U.S.C. § 285. While the court concluded that Propat’s “standing” argument was 
2006-1222,-1223,-1270 15 

legally incorrect, it held, reasonably in our view, that Propat’s interpretation and 

behavior with respect to that issue “was not so reckless as to warrant sanctioning.” 

Second, with respect to the conduct of Propat’s counsel in the litigation, the court 

observed that the conduct of both parties’ counsel “fell far short of a model prosecution 

and defense of a patent action, and an assessment that they met the minimum 

expectations would be a generous one.” Under those circumstances, the court 

determined “to leave the parties where it finds them,” a decision that falls well within the 

court’s discretion. The court also rejected RPost’s charge that Propat engaged in 

vexatious litigation within the meaning of 28 U.S.C. § 1927. Although the court found 

that Propat had engaged in some litigation misconduct during the pendency of the 

action, the court sanctioned Propat for that conduct during the litigation and reasonably 

concluded that the litigation sanction the court imposed was sufficient, and that further 

monetary sanctions would be inappropriate. 

Third, the court declined to order an award of costs to RPost in the exercise of its 

discretion under 28 U.S.C. § 1919. On that issue as well, the court determined in light 

of the conduct of the respective parties that the best course was to “leave the parties 

where it finds them” and not to award costs to RPost. We find no abuse of discretion in 

that decision. Accordingly, we uphold the trial court’s rejection of each of RPost’s 

claims to an award of fees and costs. 

 Each party shall bear its own costs for this appeal and cross-appeal. 

AFFIRMED.