# United States **Court of Appeals**  **for the Federal Circuit**

______________________ ADJUSTACAM, LLC, Plaintiff

- Appellee

v.

NEWEGG, INC., NEWEGG .COM, INC., ROSEWILL, INC., Defendants

- Appellants

SAKAR INTERNATIONAL, INC., Defendant

______________________

2016

- 1882

______________________ Appeal from the United States District Court for the Eastern District of Texas in No. 6:10

- cv

- 00329

- JRG, Judge J. Rodney Gilstrap.

______________________

Decided: July 5 , 2017

______________________

J OHN J. E DMONDS , Collins, Edmonds, Pogorzelski, Schlather & Tower PLLC, Houston, TX, argued for plai ntiff

- appellee. Also represented by S HEA N EAL P ALAVAN , S TEPHEN F. S CHLATHER

.

M ARK A. L EMLEY , Durie Tangri LLP, San Francisco, CA, argued for defendant s- appellant s . Also represented by K ENT E. B ALDAUF , J R ., D ANIEL H. B REAN , B RYAN P.ADJUSTACAM , LLC v. NEWEGG , INC

. 2

C LARK , The Webb Law Firm, Pittsburgh, PA; R ICHARD G REGORY F RENKEL , Latham & Watkins LLP, Menlo Park, CA.

______________________

Before R EYNA , M AYER , and H UGHES , Circuit Judges.

R EYNA , Circuit Judge

. AdjustaCam sued Newegg and dozens of other d efendants for patent infringement

. Although AdjustaCam voluntar il y dismiss ed most defendants early in the litig ation , it continued to litigate against Newegg , including through a Markman order and extended expert discovery

. Just before summary judgment briefing

, AdjustaCam voluntarily dismissed its infringement claims against Newegg with prejudice. Newegg then filed a motion for attorneys’ fees. The district court denied Newegg’s m otion, and Newegg appealed to this court . We remanded to the district court in light of intervening Supreme Court precedent. On remand, the district court again denied Newegg’s motion for fees. Newegg then filed this appeal. Because the district court erred in denying Newegg’s motion, we reverse

. B ACKGROUND

A. The ’343 Patent
AdjustaCam, LLC is the exclusive licensee of U.S. P atent No. 5,855,343 (“’343 patent”), which issued in 1999 and is entitled “Cam era Clip

. ” The ’343 patent discloses a camera clip that supports a camera both on a flat surface and when attached to a computer monitor. The ’343 patent includes a figure of the camera clip :ADJUSTACAM , LLC v. NEWEGG , INC

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J.A. 164. Claim 1 of the ’343 patent pro vides:

1. Apparatus for supporting a camera, having a lens, on any generally horizontal, substantially planar surface and on an object having a first su rface and a second surface and an edge intersec t ing the first surface and the second surface, compri sing : a. a hinge member adapted to be rotatably a ttached to the camera, said camera, when the hinge member is so attached, rotating, about a first axis of rotation , relative to said hinge me mber; and
b. a support frame rotatably attached to said hinge member and configured to support said hinge member on the surface and the object, said hinge member rotating about a second axis of r otation relative to said support frame, said first a xis of rotation being generally perpendicular to said second axis of rotation, said second axis of r ot ation being substantially parallel to the first su rface when said hinge member is supported on the object, said support frame having a first dispos ition positioned on said generally horizontal, su bstantially planar surface, and said support frame having a second disposition attached to the object when said first surface and said second surface are inclined from a generally horizontal orient ation, the camera being maintained adjacent said edge in said second disposition of said suppor t frame

. J.A. 169

– 170 (col. 6 l. 49

– col. 7 l. 6) (relevant term s e mphasized)

.ADJUSTACAM , LLC v. NEWEGG , INC

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B. Newegg’s Accused Product s Unlike the invention disclosed in the ’343 patent, Newegg’s accused products use a ball

- and

- socket joint, which facilitates rotation about multiple axes. See J.A. 6. In its original order denying Newegg’s motion for fees, the district court noted that “the products do not have a pure ball

- and

- socket joint but rather a modified ball

- and

- socket joint with a channel that restricts movement.” Id. Thus

, although Newegg’s products a re constrained in some movements, they still allow rotation about more than one axis. The district court never found that Newegg’s pro ducts rotate about a single axis.

C. District Court Litigation
In July 2010, AdjustaCam sued Newegg, Inc., Newegg.com, Inc., and Rosewill, Inc. (collectively, “Newegg”) and dozens of other defendants for infring ement of the ’343 patent. AdjustaCam moved to dismiss most defendants from the litigation prior to claim co nstruction. Many defendants s ettled for far less than the cost of litigation. See J.A. 6

– 7.
Almost two years later, i n April 20 12, the district
court held a Markman hearing followed by the issuance of

a Markman order. The court determined that “the ‘rota tably attached’ terms do not require construction beyond what is contained in the claims.” J.A. 22. Nonetheless, it concluded the ’343 patent claims describe “rotatably attached” objects as rotating over a single axis. J.A. 20. T he Markman order explained that “e very reference to a ‘rotatably attached’ object in the specification and claims describes the attachment as permitting motion over a single axis of rotation ,” and “ [t]he claims plainly describe each ‘ rotatably attached ’ object as ro tating about a single axis.” J.A. 21

– 22

. Shortly after the Markman order, AdjustaCam settled with more defendants. However , AdjustaCam continuedADJUSTACAM , LLC v. NEWEGG , INC

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to press its case against Newegg

. The case proceeded into expert discovery.
In September 2012, just prior to summary judgment briefing, AdjustaCam moved to dismiss with prejudice its claims against Newegg, contingent on Newegg’s right to seek fees after dismissal. In October 2012, Newegg moved for a declaration of exceptional case under 35 U.S.C. § 285 and an award of fees. Newegg argue d that th is case is exceptional because AdjustaCam brought an objectively baseless lawsuit in bad faith. J.A. 1779

. According to Newegg, AdjustaCam brought the case simply to extract nuisance

- value settlements unrelated to the merits and far below the co sts of defense. Id. Newegg further contended that AdjustaCam had no reasonable expectation of success on its infringement claims against Newegg, particularly after the district court’s Markman order

. Id. Newegg argued that e ven after the Markman order, AdjustaCam pressed its frivolous infringement claims, continued to demand a nuisance settlement , and prolong ed th e litigation in bad faith. Id.
Specifically, Newegg pointed out that its allegedly i nfringing product s use ball

- and

- socket joint s . J.A. 17 86. Comparing Newegg’s ball

- and

- socket products to the ’ 343

p atent claims demonstrate s the spurious nature of A djustaCam’s infringement allega tions

. Id. And, according to Newegg, t he district c ourt’s Markman order makes AdjustaCam’s position even more u ntenable . A djustaCam ’s infringement allegations against Newegg

, therefore, were objectively baseless. Id. Final ly, Newegg accused AdjustaCam of serv ing a substantively differ ent

“ supple mental ” infringement report the day of its i n-ADJUSTACAM , LLC v. NEWEGG , INC

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fringement expert’s deposition, without expla ining the delay. J.A. 8 ; see also J.A. 1789

. 1

The district c ourt denied Newegg’s motion. T he court
wrote that “[i]f the ball and socket joint truly restricts the range of movement such that it cannot rotate about multipl e axes, the constrained ball and socket joint could meet the claim limitation which requires the hinge me mber being rotatably attached to the camera in a single axis of rotation.” J.A. 6. “Since one could reasonably argue [Newegg’s] products meet the ‘ro tatably attached’ limit ation, AdjustaCam’s infringement theories are not obje ctively baseless.” Id. Thus, the court found that “AdjustaCam’s continued assertion of its infringement claims post

- Markman do not amount to litigation misco nduct.” J.A. 8.

Th e court further concluded that the action was not brought in bad faith or for an improper purpose. Id. It explained that although AdjustaCam asserted relatively low damage s against many defendants , patent infring ement cases do not contain a “minimum dama ges requir ement

. ” J.A. 7. The court discerned “no other evidence” aside from low settlement amounts that AdjustaCam filed the suit solely to collect nuisance

- value settlements. Id. The court also rejected Newegg’s argument that A djustaCam’s per

- unit settlement amounts were so varied (between $ 0 .10 per unit and $161.29 per unit) that “A djustaCam’s royalty was simply ‘bogus.’” J.A. 9. N ewegg

m ight disagree with AdjustaCam’s damages calculations

, but the district court found “ no evidence ” that A djustaC am’s methodology “ was so outrageous and unreli able to support an award of attorney fees. ” Id.

1 Newegg spent over $350,000 in attorneys’ fees and expert fees to defend the lawsuit and file its motion for fees. J.A. 3808.ADJUSTACAM , LLC v. NEWEGG , INC

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Finally, t he court determined that Newegg “failed to prove AdjustaCam acted inappropriately in this case.” J.A. 8. It credited AdjustaCam’s explanation that it inadvertently served a draft expert report to Newegg, and that A djustaCam served a last

- minute supplem ental expert report because it did not realize its mistake until the day of its expert’s deposition. J.A. 8

– 9. “In the a bsence of any other dubious behavior,” the court wrote, “there is no reason to find AdjustaCam acted inappropr iately here.” J.A. 9.

D. First Appeal
In September 2013, Newegg appealed the district court’s denial of its motion for fees. In April 2014, the Supreme Court issued its decision in Octane Fitness, LLC

v. Icon Health & Fitness, Inc. , 134 S. Ct. 1749 (2014) (clarifying what constitutes an “exceptional” case under § 285)

. Soon thereafter, we remanded the case back to the district court for reconsideration in light of Octan e

. See AdjustaCam, LLC v. Newegg, Inc. , 626 F. App’x 9 87 , 991 (Fed. Cir. 2015) (“ Remand Order ”)

. In that or der, we noted that Octane “did not simply relax the standard under § 285. It substantially changed the analysis.” Id. at 990. We decline d to sub stitute our judgment for that of the district court in applying these new standards and afforded the district court a n opportunity to evalu ate whether this case is “ exceptional” under the new Octane standard. Id. at 991. We also noted that Newegg ’s

“ arguments appear to have significant merit, particularly [its] argument that AdjustaCam’s continued pursuit of its infringement claims after the district court construed the claim term ‘rotatably attached’ was baseless.” Id. at 991 n.2.

E. Proceedings O n R emand
Upon remand, the case was re assigned to a new di strict court judge due to the original judge’s retirement. The new judge allowed re

- briefing on the § 285 issueADJUSTACAM , LLC v. NEWEGG , INC

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under Octane

. In January 2016, AdjustaCam filed a response to Newegg’s renewed motion fo r fees that co ntai ned a supplemental report by AdjustaCam’s expert, D r. Muskivitch

. J.A. 3937

– 75. AdjustaCam concede s that the supplemental report contain s infringement arguments not raised before the original judge

. At the January 26, 2016 oral argum ent, AdjustaCam explained that “after the fact, Newegg

. . . really attacked this issue [of single

axis rotation], and so there really wasn’t that much of a record for it in fron t of [the first district judge] and ult imately the Federal Circuit. So we supplemented that record with

. . . declarations to try and provide some additional explanation.” J.A. 4 312; see also J.A. 4313 (AdjustaCam arguing that the supplemental Muskivitch declaration provided “more reasoned explanations” and “tried to sum things up”).
In a March 2016 order, the district court wrote that “[a]lthough the standard for evaluating exceptionality under § 285 has changed,

. . . the facts of the case the mselves remain the same” as when the previous judge initially rejected Newegg’s fee r equest. J.A. 1_5. The
court went on to summarize 11 separate factual findings from the original judge’s opinion. J.A. 1_5

– 1_6. One such finding was that AdjustaCam’s methodology of calculating damages was not “ so outrageous and unreliable to support

an award of attorney fees.” J.A. 1_6. The court stated that “[t]he determination of whether a case is ‘exceptional’ under § 285 necessarily involves intangible elements uniquely available to the district court that has lived with the case for a period of m onths or years.” Id. It acknow ledged that a Federal Circuit panel found “significant merit” in Newegg’s argument. Id. n.6. The court , howe ver, wrote that it “endeavored not to circumvent by hin dsight the judgments and in

- person evaluations that the tri al judge who dealt with this case in the courtroom arena was best positioned to have made, considering both the facts as well as the unavoidable human intangiblesADJUSTACAM , LLC v. NEWEGG , INC

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that ‘a totality of the circumstances’ contemplates.” Id. It conclud ed that AdjustaCam’s in fringement and validity arguments were not so weak, or its litigation conduct so poor, to constitute an exceptional case. J.A. 1_7. On this basis, the district court denied Newegg’s motion for fees.
Newegg timely appeals. We have jurisdiction under 28 U. S.C. § 1295(a)(1).

D ISCUSSION

A. Standard O f Review

“ The court in exceptional cases may award reasonable attorney fees to the prevailing party. ” 35 U.S.C. § 285. We review for abuse of discretion the denial of attorney s’ fees under § 285. Highmark Inc. v. Allcare Health Mgmt. Sys., Inc. , 134 S. Ct. 1744, 1747 (2014). We also review for abuse of discretion a district court’s use of its inherent authority to award or deny expert fees. MarcTec, LLC

v. Johnson & Johnson , 664 F.3d 907, 921 (Fed. Cir. 2012). T he Supreme Court has noted that § 285 “ imposes one and only on e constraint on district courts’ discretion to award attorney ’ s fees in patent litigation: [t]he power is reserved for ‘exceptional’ cases.” Octane , 134 S. Ct. at 1755

– 56. “[A] n ‘exceptional’ case is simply one that stands out from others with respect to the substantive strength of a par ty’ s litigating position (considering both the governing law and the facts of the case) or the unre asonable manner in which the case was litigated. ” Id. at 1756.
Despite this con s iderable latitude in making fees d eterminations, an appellate court may correct a district court’s legal or factual error. Highmark , 134 S. Ct. at 1748 n.2. A district court abuse s its discretion when its ruling rests on an erroneous legal conclusion or on a clearly erroneous assessment of the evidence

. Id. ; see also Apple Inc. v. Samsung Elecs. Co. , 809 F.3d 633, 639 (Fed. Cir. 2015)

. The court also abuses its discretion when itADJUSTACAM , LLC v. NEWEGG , INC

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makes a “‘clear error of judgment in w eighing relevant factors.’” Bayer CropScience AG v. Dow AgroSciences LLC , 851 F.3d 1302, 1306 (Fed. Cir. 2017) (quoting Me ntor Graphics Corp. v. Quickturn Design Sys., Inc. , 150 F.3d 1374, 1377 (Fed. Cir. 1998)).

B. The District Court Abused Its Discretion

W e hold that t he district court abused its discretion by not awarding fees to Newegg for two independent reasons: (1) it failed to follow our mandate on remand; and (2) its decision was based on “a clearly erroneous assessment of the evidence.” Highmark , 134 S. Ct. at 1748 n.2

. We recognize the deference owe d to district courts in deciding fees motions. See Univ. of Utah v. Max

Planck

- Gesellschaft z ur Foerderun g d er Wissenschaften e.V. , 851 F.3d 1317 (Fed. Cir. 2017) (affirming decision not to award fees) ; Bayer , 851 F.3d at 130 3 (affirming decision to award fees). Deference, however, is not abs olute. Apple , 809 F.3d at 639; see also Highmark , 134 S. Ct. at 1748 n.2 ; Checkpoint Sys., Inc. v. All

- Tag Sec. S.A.

,

__ F.3d

__ , 2017 WL 2407853 (Fed. Cir. June 5 , 2017) (reversing fee award) ; Rothschild Connected Devices Innovations, LLC v. Guardian Prot. Servs., Inc.

, __ F.3d

__ , 2017 WL 2407870 (Fed. Cir. June 5 , 2017) (reversing decision not to award fees)

. When a district court bases its decision on a clearl y erroneous view of the evidence, as it did here, the court abuses its discretion in denying fees.

1. Failure To Follow Mandate
The district court erred by ignoring our mandate “ to evaluate whether this case is ‘ exceptional’ under the totality of the circumst ances and a lower burden of proof ” in the first instance. Remand Order

, 626 F. App’x at 991. Instead of engaging in an independent analysis, the district court adopted the pre vious judge’s factual findings wholesale. See J.A. 1_5

– 1_6. The entirety of t he court’s analysis based on those adopted fact

- findings consists of three sentences:ADJUSTACAM , LLC v. NEWEGG , INC

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Having considered the totality of the circu m stan ces, as reflected in the record and affording due weight to the previous in

- person evaluations a nnounced by [the previou s judge] from his unique posture of having lived with this case and these parties, the Court concludes that this is not an “exceptional” case under § 285. The determ in ation of whether a case is “excep tional” under § 285 necessarily involves intangible elements uniquely available to the district court that has lived with the case for a period of months or years. After a careful review of the entirety of the record, as well as the parties’ arguments and a d ditional briefing, the Court, in an exercise of its statutory grant of discretion, does not find that AdjustaCam’s i nfringement and validity arg u ments were so weak, or its litigation conduct so poor, as to make this case stand out from others.
J.A. 1_6.
Based on the circumstances presented here, t he wholes ale reliance on the pr e vious judge ’s factfinding was an abuse of di s cretion . The court apparently felt co nstrained by its lack of “in

- person evaluations that the trial judge who dealt with this case in the courtroom arena was best positioned to have made. ” J.A. 1_6 n.6. But the court allowed additional briefing and held an oral arg ument; therefore, it had first

- hand knowledge and in

person experience with the parties. Moreover, A djustaCam filed a supplemental brief on remand filled with new infringement arguments. Thus, contrary to the district court’s conclusion, see J.A. 1_5, the facts had changed since the case was before the original district judge.

We specifically instructed the judge on remand to “evaluate” the merits of Newegg’s motion in the fir st instance based on the new Octane standard , which did notADJUSTACAM , LLC v. NEWEGG , INC

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occur. We also expressed this court’s view that Newegg’s argument had “significant merit.” While the district court need not reveal its assessment of every consideration of § 285 motions , it mus t actually assess the totality of the circumstances. The district court did not do this. In particular, there is no analysis of AdjustaCam’s continued “dubious” press of litigation in the totality of the circu mstances under the new standard set in Octane

. Our recent decision in University of Utah does not compel a different result. In Utah , we were “wary to wade in[to] [the] circumstantial waters” of weighing competing evidence related to the strength of a party’s litigating position. 851 F.3d at 1323. We noted that the district court is “in the best position to understand and weigh these issues,” that the district court “ha[s] no obligation to write an opinion that reveals her assessment of every consideration,” and reaffirmed that we do not second

guess such determinations. Id.

This case is different from Utah because here, there is

n o evidence that the district court properly weighed the issues. We reiterate today that the district court is in the best position to weigh the evidence. When a district court makes a § 285 ruling based on independent evaluation of the evidence before it, we will continue to defer to that ruling. We will not defer, however, to conclusions based on a “clear error of judgment in weighing relevant fa ctors.” Bayer , 851 F.3d at 1306. Here, t he district court did not independently evaluate the evidence in view of the Supreme Court’s intervening precedent, which changed the standard by which § 285 motions are to be evaluated. For example, the district court failed to consider and include in its analysis AdjustaCam’s supplemental report that raised new infring ement arguments for the first time on remand. It is not clear from the district court’s opi nion whether it was aware that well after the merits phase of the case had ended

, AdjustaCam raised new merits arguments in an attempt to rebut Newegg’s contentionADJUSTACAM , LLC v. NEWEGG , INC

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that AdjustaCam pursued objectively baseless litigation. Based on the foregoing, w e find that the district court abused its discretion by failing to follow our mandate

. 2. Clearly Erroneous Factual Findings

The district court’s failure to follow our mandate is sufficient reason to find an abuse of discretion. Separate and apart from that issue , however, the district court’s clearly erroneous findings about the substantive strength of AdjustaCam’s case independently support reversal. The record developed ov er the past five years points to
t his case as stand ing out from others with respect to the substan tive strength of Ad justaCam’s litigating position

. Octane , 134 S. Ct. at 1756. Where AdjustaCam may have filed a weak infringement lawsuit , accusing Newegg’s products of in fringing the ’343 patent

, AdjustaCam’s suit became baseless after the district court’s Markman order, where the court found “that the claims of the ’343 patent describe ‘rotatably attached’ objects as rotating over a single axis.” J .A. 20. Indeed, the court found that “[e]very reference to a ‘ rotatably attached ’ object in the specification and claims describes the attachment as permitting motion over a single axis of rotation.” J.A. 21

. Stated differently, the evidence proffered b y AdjustaCam showed that AdjustaCam’s lawsuit was baseless.
The district court found that the strength of A djustaCam’s litigation position was not exceptional because Newegg’s ball

- and

- socket products were constrained in such a way that AdjustaCam could reasonably argue they rotated on a single axis. J.A. 6. But AdjustaCam did not ad vance that argument. Instead, AdjustaCam argued that the constraint on Newegg’s ball

- and

- socket joint limited the rotation to a single axis at a time

. See J.A. 482

– 83; see a lso J.A. 484 (acknowledging “two axes” but arguing “they are separate”). AdjustaCam did not intr oduce any evidence that Newegg’s ball

- and

- socket products were limited to a single axis of rotation. We find noADJUSTACAM , LLC v. NEWEGG , INC

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dis pute that Newegg’s cameras rotate about at least two

axes. As such, there is no possible way for Newegg’s products to infringe the ’343 patent. N o reasonable factfinder could conclude that Newegg’s products infringe; therefore, AdjustaCam’s litigation position was baseless

. These are traits of an exceptional case. The district court’s contrary conclusion was based on “a clearly err oneous assessment of the evidence.” Highmark , 134 S. Ct. at 1748 n.2. Fees are warranted.

Octane disclosed a nother reason why this case is e xceptional that was not considered by the district court : AdjustaCam litigated the case in an “unreasonable ma nner.” Octane , 134 S. Ct. at 1756. This meas ure of exce ptionality i s evident through AdjustaCam’s repeated use of after

- the

- fact declarations

. In 2012, AdjustaCam served a new expert report on Newegg the day of that expert’s deposition. J.A. 8. AdjustaCam claims it did not realize that it had inadvertently served a draft report until the day of the deposition . But as Newegg argued to the distr ict court, had AdjustaCam served an earlier draft of Dr. Muskivitch’s report on June 25, AdjustaCam would have been aware of this error when Newegg’s expert served his rebuttal report on July 27, 2012 . J.A. 1789. AdjustaCam certainly would have known of its error well before Newegg’s expert ’s deposi tion in August 2012. Id.

The district court also failed to consider on remand that AdjustaCam filed a supplemental declaration making new infringement argument s. AdjustaCam cites its

su pplemental declaration dozens of times in its briefing before our court without ever disclosing the fact that the supplemental declaration was executed more than two years after the initial fees determination. Filing new declarations, especially without d isclosing them as new on appeal, elongates the period of time that AdjustaCam hasADJUSTACAM , LLC v. NEWEGG , INC

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continued to press frivolous arguments. 2 We agree with the district court that “in the absence of any other dubious behavior,” the late

- served declaration might not warrant awarding fees. J.A. 9. But as we recognize today, the totality of the circumstances demonstrate s other dubious behavior that , when considered collectively

, warrants fees under § 285. The district court’s contrary finding

— that there was an absence of wha t it termed “ dubious beha vior”— was clearly erroneous.
Finally, w e take note of AdjustaCam’s damages mo del. We agree with the district court that there is no mini mum damages requirement to file a patent infring ement case. J.A. 7. A sserting seemingly low damages against multiple defendants

— or settling with defendants for less than the cost of litigation

— does not necessarily make a case “exceptional” under § 285. But here, A djustaCam asserted nuisance

- value damages against many defend ants, settled with th em for widely varied royalty rates, and continued to press baseless infringement contentions well past an adverse Markman order and expert discovery. The original judge stated that A djustaCam’ s damages theory was not “ so outrageous and unreliable to suppo rt an award of attorney fees ,” J.A. 9, which the subsequent judge repeated, J.A. 1_6. Under the governing clearly erroneous standard of review

, we would be inclined to affirm if AdjustaCam’s damages methodology were the only issue. I n light of A djustaCam ’s frivolous infringement argument and unre a-

2 AdjustaCam’s failure to disclose its supplemental declaration on appeal occurred after the district court rendered its decision and thus is not dispositive of whet her AdjustaCam unreasonably litigated the case before the district court

. AdjustaCam’s behavior on appeal, however, strengthens our conclusion that its litigation misconduct before the district court was not a one

- off o ccurrence

.ADJUSTACAM , LLC v. NEWEGG , INC

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sonable manner of litigation, however, we conclude that the district court clearly erred by fail ing to consider AdjustaCam’s damages methodol ogy as part of a totality

of- the

- circumstances analysis. T he irregular ities in AdjustaCam’s damages model and the purported nuisance value of many of its settlements should have played a role in the evaluation of whether this is case exceptional.

C ONCLUSION

The district court abused its discretion failing to fo llow our mandate to evaluate the totality of the circu mstances under Octane in the first instance. Moreover

, AdjustaCam filed a weak infringement case against Newegg that became objectively baseless after the district court’s Markman order. The district court’s determin ation that AdjustaCam could reasonably argue infring ement post

- Markman is based on clearly erroneous fact

findings

. AdjustaCam also unreasonably litigated the case by repeatedly serving expert reports and declarations at the last minute. The pattern of low and erratic settl ements, though not determinative, reinforces a conclusion of unreasonableness

. The district court’s conclusion that AdjustaCam reasonably litigated this case was clearly

erroneous. Based on the to tality of these case

- specific circumstances, we hold that the district court abused its discretion in denying Newegg’s motion for fees.

We therefore reverse and remand for further procee dings consistent with this opinion, including the calcul ation of attorneys’ fees

. REVERSED AND REMANDED

C OSTS Costs to Newegg.