NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

GORDON GRAVELLE, OPERATING AS CODEPRO 

MANUFACTURING,

Plaintiff-Appellant

v.

KABA ILCO CORPORATION,

Defendant-Appellee

KABA AG, KABA HOLDING AG,

Defendants

______________________ 

2016-2318

______________________ 

Appeal from the United States District Court for the 

Eastern District of North Carolina in No. 5:13-cv-00642-

FL, Judge Louise Wood Flanagan.

______________________ 

Decided: April 12, 2017

______________________ 

GORDON GRAVELLE, Thunder Bay, Ontario, Canada, 

pro se.

ALBERT P. ALLAN, Allan Law Firm, PLLC, Charlotte, 

NC, for defendant-appellee. 

______________________ 
2 GRAVELLE v. KABA ILCO CORPORATION

Before PROST, Chief Judge, LOURIE and TARANTO, Circuit 

Judges.

PER CURIAM. 

Gordon Gravelle, operating as CodePro Manufacturing, sued Kaba Ilco Corp. (Kaba) in the Eastern District of 

North Carolina. In his complaint, he focused on the fact 

that Kaba falsely marked its key-cutting machines as 

“patent pending” for a time, as Kaba eventually admitted, 

and sought monetary relief under the Patent Act’s falsemarking provision, 35 U.S.C. § 292; the Lanham Act’s 

false-advertising provision, 15 U.S.C. § 1125; and North 

Carolina’s Unfair and Deceptive Practices Act, N.C. Gen. 

Stat. § 75-1.1 et seq. Gravelle has represented himself in 

the district court and on appeal in this case. 

Three orders of the district court in the case are before us. One is the district court’s grant of summary 

judgment to Kaba. Order, Gravelle v. Kaba Ilco Corp., 

No. 5:13-cv-642-FL, 2016 WL 2644890 (E.D.N.C. May 9, 

2016), ECF No. 72 (Summary Judgment Order). The 

second is the district court’s order granting Kaba 

$3,031.25 of the $11,640 Kaba sought to recoup expenses 

it incurred in successfully moving to compel Gravelle to 

attend a deposition at which he would be questioned. 

Order, Gravelle v. Kaba Ilco Corp., No. 5:13-cv-642-FL, 

2015 WL 9451047 (E.D.N.C. Dec. 23, 2015), ECF No. 59

(Reimbursement Order). The third order at issue is the 

award of attorneys’ fees after the grant of summary 

judgment. Order, Gravelle v. Kaba Ilco Corp., No. 5:13-cv642-FL, 2016 WL 3920208 (E.D.N.C. July 15, 2016), ECF 

No. 85 (Fees Order). 

Gravelle timely appealed those orders to the Fourth 

Circuit, which transferred the appeal to this court. We

affirm the first two orders, but we vacate the order awarding attorneys’ fees and remand on that issue for further 

consideration.
GRAVELLE v. KABA ILCO CORPORATION 3

I 

Gravelle has been designing, marketing, and distributing electronic key-cutting machines for more than 20 

years. From 1998 until around 2014, Gravelle sold a keycutting machine model called the CodePro 4500. In an 

unspecified year in this period, Gravelle may have sold as 

many as 19 machines. In the years around 2006, Gravelle 

testified, he was selling “eight to ten” machines per year. 

By 2012, sales of the CodePro 4500 had dropped to about 

four machines per year, and in 2013 and 2014 he sold only 

four machines total. In 2010, Gravelle began marketing a 

second key-cutting machine, the RapidKey 7000. Between 2011 and 2015, Gravelle sold “around 35 or 32” 

RapidKey 7000 machines. In April 2015, Gravelle sold 

the rights to the RapidKey 7000 to Hudson Lock LLC 

(Hudson). Gravelle testified that between October 2014 

and September 2015, Hudson sold “between 50 and 85” 

RapidKey 7000 machines and spent “probably . . . $30,000 

in advertising.” Gravelle refused to produce documentary 

evidence of his sales in response to Kaba’s interrogatories.

Beginning around 2008, Kaba began marketing its EZ 

Code machine. It marked two features, the “automatic 

blade detection” and “automatic calibration,” as “patent 

pending,” although no patent application for those features was ever filed. Kaba sold 687 EZ Code machines

between 2008 and 2015. Although Gravelle contacted

Kaba three times to investigate the truth of Kaba’s “patent pending” claims—by email on October 8, 2008; by 

phone on August 7, 2013; and by email on August 20, 

2013—Kaba did not respond, and it continued to use the 

false marking through at least September 10, 2013.

Gravelle filed this lawsuit against Kaba in the Eastern District of North Carolina on September 6, 2013, 

focusing on Kaba’s false marking of its products and 
4 GRAVELLE v. KABA ILCO CORPORATION

asserting claims under 35 U.S.C. § 292(a), under 15 

U.S.C. § 1125, and under North Carolina law.1 On February 10, 2015, the court granted the parties’ joint request for an extension of the discovery deadline through 

April 30, 2015, because Gravelle had undergone ear 

surgery and could not attend a previously noticed deposition. The parties indicated that Gravelle would be available for deposition before the end of April, and Kaba 

properly noticed Gravelle’s deposition for April 29, 2015. 

Kaba Ilco’s Mem. in Support of its Mot. to Compel and for 

Expense Reimbursement Ex. F, Gravelle v. Kaba Ilco 

Corp., No. 5:13-cv-642-FL (E.D.N.C. July 2, 2015), ECF 

No. 40. On April 21, 2015, Gravelle made it clear that he 

would not be attending that deposition either. Id. Ex. I. 

In July 2015, Kaba filed a motion to compel Gravelle’s 

attendance at a deposition; Kaba supported the motion 

with fourteen exhibits. Id. The district court granted the 

motion to compel in a text order, stating: “For the reasons 

and on the bases therein stated, defendant’s motion to 

compel, (DE 38), is ALLOWED.” Text Order, Gravelle v. 

Kaba Ilco Corp., No. 5:13-cv-642-FL (E.D.N.C. Aug. 19, 

2015). Kaba filed a declaration to support its request for 

reimbursement of expenses relating to the motion to 

compel seeking $11,640.00. The district court awarded 

Kaba $3,031.25. Reimbursement Order 9. Gravelle paid 

the award and was deposed on September 18, 2015.

Kaba filed a motion for summary judgment on December 9, 2015, and Gravelle filed a motion for summary 

judgment on January 21, 2016. On May 9, 2016, the 

district court granted Kaba’s motion on all counts, denied 

1 Gravelle named not only Kaba but two other related entities. Those other entities were dismissed from 

the suit in 2014, and Gravelle does not contest that dismissal.

 
GRAVELLE v. KABA ILCO CORPORATION 5

Gravelle’s motion, and entered judgment for Kaba. 

Summary Judgment Order 18.

On May 23, 2016, Kaba filed a motion for attorneys’ 

fees. Although Gravelle did not respond, the district court 

addressed the motion on its merits, granting it on July 15, 

2016. The court held that this was an exceptional case 

under 35 U.S.C. § 285 and 15 U.S.C. § 1117(a) and a case 

involving a “complete absence of a justiciable issue of 

either law or fact raised by the losing party in any pleading” under N.C. Gen. Stat. § 6-21.5. Fees Order 5–6. The 

amount of fees has yet to be determined. 

Gravelle timely appealed to the Fourth Circuit on 

June 6, 2016. On June 23, 2016, the Fourth Circuit 

granted Gravelle’s motion to transfer his appeal to this 

court. Order, Gravelle v. Kaba Ilco Corp., No. 16-1646 

(June 23, 2016). On August 10, 2016, Gravelle filed an 

amended notice of appeal to include the attorneys’ fees 

award. We have jurisdiction under 28 U.S.C. § 1295(a)(1).

II

Gravelle appeals the district court’s summary judgment order, the order reimbursing Kaba for $3,031.25 in 

expenditures relating to the motion to compel, and the 

order granting attorneys’ fees to Kaba. We review a grant 

of summary judgment de novo. Lismont v. Alexander 

Binzel Corp., 813 F.3d 998, 1002 (Fed. Cir. 2016); Waste 

Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 329 (4th 

Cir. 2001). We review the district court’s reimbursement 

and attorneys’ fees orders for abuse of discretion. See, 

e.g., Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 134 

S. Ct. 1744 (2014); Am. Reliable Ins. Co. v. Stillwell, 336 

F.3d 311, 320 (4th Cir. 2003).

A 

Summary judgment is appropriate where the evidence 

before the court demonstrates “that there is no genuine 

dispute as to any material fact and the movant is entitled 
6 GRAVELLE v. KABA ILCO CORPORATION

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A 

factual dispute is “material” only if it “might affect the 

outcome of the suit under the governing law,” and it is 

“genuine” only if “the evidence is such that a reasonable 

jury could return a verdict for the nonmoving party.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

The court must view all facts and draw reasonable inferences in the light most favorable to the nonmoving party. 

Scott v. Harris, 550 U.S. 372, 378 (2007). Conclusory and 

speculative assertions about a material fact are insufficient to create a triable issue on that fact. See Dash v. 

Mayweather, 731 F.3d 303, 311 (4th Cir. 2013); Madey v. 

Duke Univ., 307 F.3d 1351, 1363 (Fed. Cir. 2002). 

1 

The Patent Act prohibits “mark[ing] upon, or affix[ing] to, or us[ing] in advertising in connection with any 

article, the words ‘patent applied for,’ ‘patent pending,’ or 

any word importing that an application for patent has 

been made, when no application for patent has been 

made, or if made, is not pending, for the purpose of deceiving the public.” 35 U.S.C. § 292(a). In order to sue under 

the false marking statute, a plaintiff must have “suffered 

a competitive injury as a result of a violation” of the 

marking statute. Id. § 292(b).2 We have explained that a 

“competitive injury” is “‘[a] wrongful economic loss caused 

by a commercial rival, such as the loss of sales due to 

unfair competition; a disadvantage in a plaintiff’s ability 

2 The competitive-injury requirement was introduced by the Leahy-Smith America Invents Act, Pub. L. 

No. 112-29, § 16, 125 Stat. 284, 329 (2011), and applies in 

“all cases, without exception, that are pending on, or 

commenced on or after,” September 16, 2011. Id.; Presidio Components, Inc. v. Am. Tech. Ceramics Corp., 702 F.3d 

1351, 1364–65 (Fed. Cir. 2012). The requirement applies 

in this action, commenced on September 6, 2013.

 
GRAVELLE v. KABA ILCO CORPORATION 7

to compete with a defendant, caused by the defendant’s 

unfair competition.’” Sukumar v. Nautilus, Inc., 785 F.3d 

1396, 1400 (Fed. Cir. 2015) (alteration in original) (quoting Competitive Injury, Black’s Law Dictionary (9th ed. 

2009)). In the false-marking context, the injury must be 

one inflicted on a firm’s competitive activity, caused by 

the false marking. Id. at 1402; see id. at 1400 n.3. 

The district court held that Gravelle failed to establish a competitive injury and therefore lacked statutory 

standing. Although the parties disputed whether Gravelle and Kaba were direct competitors, the court assumed 

that they were and still granted summary judgment that 

Gravelle had not shown the required competitive injury.

With respect to sales of the CodePro 4500, the district 

court determined that the decline in Gravelle’s sales 

between 2006 and 2014 did not amount to a competitive 

injury. We need not address Gravelle’s argument that the 

district court mistakenly viewed his business as not 

having suffered a competitive injury because the decline 

in sales was “insubstantial.” It is enough that the district 

court correctly concluded that Gravelle did not put forth 

sufficient evidence to connect the decline in CodePro 4500 

sales to Kaba’s false marking of its machine as “patent 

pending.” Indeed, Gravelle admitted that the reason the 

CodePro 4500 sales declined after 2006 was that Kaba 

had purchased the rights to the machine in November of 

2006 and Gravelle “was not permitted to sell any more of 

these machines, save the 10 he had remaining in shop 

inventory.” Appellant’s Reply 3. In light of that admission, no reasonable jury could infer from Gravelle’s decline in CodePro 4500 sales around the time of Kaba’s 

false marking that the decline was an injury caused by 

the false marking.

With respect to the RapidKey 7000, Gravelle rests his 

competitive-injury contention on the assertion that, while 

he was “forced” to sell the rights to the RapidKey 7000 to 
8 GRAVELLE v. KABA ILCO CORPORATION

Hudson for $20,000,3 the true value of those rights in the 

absence of Kaba’s false marking was more than $8 million. As an initial matter, however, the $8 million figure 

rests in the end on Gravelle’s own estimate that he could 

have sold 12 units per month over 12 years. The district 

court held that Gravelle’s estimate, not backed by any 

other evidence, was too speculative to support a reasonable finding that Gravelle could have achieved that level of 

sales in light of the evidence that he sold a maximum of 

19 CodePro 4500 machines per year even before Kaba’s 

false marking, and at most 35 RapidKey 7000 machines 

over five years. Cf. Curley v. Adams Creek Assocs., 409 F. 

App’x 678, 680 (4th Cir. 2011) (finding “vague, unsubstantiated, and self-serving allegations” insufficient to establish fact at summary judgment). Gravelle also points to a 

statement by Robert J. Sylvia, the President of Hudson, 

that as of December 2014 he thought that Hudson could 

sell 1000 RapidKey 7000 machines per year, which would 

generate approximately $2 million in annual profits. 

That assertion, however, is about what Hudson might 

sell, not directly about what Gravelle would have sold; 

and if true, it tends to undermine Gravelle’s claim that 

Kaba’s marking prevented his realization of the full value 

of the rights he transferred to Hudson.

We need not definitively assess the sufficiency of the 

evidence on the RapidKey 7000’s value. Regardless, none 

of the evidence Gravelle cites permits a finding that ties 

3 Although Gravelle asserts that he was paid 

$20,000 by Hudson, and the district court said the same 

thing, the contract provided to this court shows a purchase price of $10,000. J.A. 218. Gravelle’s supplemented 

interrogatory responses indicate that he also received a 

$140 royalty on each RapidKey 7000 machine sold by 

Hudson. J.A. 252. We do not believe that these details 

matter to the analysis.

 
GRAVELLE v. KABA ILCO CORPORATION 9

Kaba’s marking activity to any diminution in the sales of 

the Gravelle model or the price Hudson paid. Gravelle 

has advanced no evidence that he was deterred from 

introducing or continuing to market a product similar to

Kaba’s falsely marked one or from engaging in innovation 

in the field of Kaba’s product, or that he incurred costs in 

designing around the features Kaba marked as subject to 

a pending patent. See Forest Group, Inc. v. Bon Tool Co., 

590 F.3d 1295, 1302–03 (Fed. Cir. 2009) (describing ways 

that false marking may harm competition). The only

evidence that Gravelle puts forth to connect his alleged 

injury to Kaba’s false marking is the assertion, in his 

affidavit, that “automatic blade detection” and “automatic 

calibration” are “highly desirable within the small locksmith community, at large, to the extent that same could

readily influence a buyer[’]s purchasing decision.” J.A. 68

(emphasis added). That is simply too speculative and 

unexplained an assertion to support the causal proposition, which is anything but obvious, that buyers actually 

purchased the “patent pending” machines over Gravelle’s 

machines—or would have bought Gravelle’s machines (as 

opposed to either Kaba’s or someone else’s) had Kaba not 

falsely stated “patent pending.” For this market-specific 

proposition, which is not one of the previously recognized 

mechanisms of competitive injury, see Forest Group, 590 

F.3d at 1302–03, more than Gravelle’s general speculation 

about what “could” occur is needed to create a triable 

issue.

Gravelle testified at his deposition that Hudson had to 

spend “probably . . . $30,000 in advertising to undo part of 

the damage that [Kaba] did by false advertising.” J.A. 

100. But when asked whether Hudson said “anything 

generally that indicates that they spend the—they spent 

marketing money to, as you put it, undo [Kaba’s false 

marking],” Gravelle answered, “No. But I—they did say 

specifically—or in generally—or specifically that, you 

know, false marketing is very hard to overcome.” Id. The 
10 GRAVELLE v. KABA ILCO CORPORATION

district court deemed this testimony “speculative” and 

“not entitled to credit at summary judgment.” Summary 

Judgment Order 12. While credibility judgments are 

inappropriate at summary judgment, we interpret the 

district court as concluding that no reasonable juror could 

find that Gravelle’s testimony was sufficient to show that

the reason Hudson spent $30,000 advertising for a product it believed would generate $2 million in annual profits 

was that the expenditure was necessary to overcome 

Kaba’s false marking. We agree. 

Given the lack of concrete, non-speculative evidence of 

causation of an actual injury by Kaba’s false marking, we 

affirm the entry of summary judgment for Kaba on Gravelle’s false-marking claim.4

2

The Lanham Act makes “[a]ny person who, on or in 

connection with any goods or services . . . uses in commerce any . . . false or misleading description of fact, or 

false or misleading representation of fact . . . liable in a 

civil action by any person who believes that he or she is or 

is likely to be damaged by such act.” 15 U.S.C. § 1125(a). 

To state a claim under § 1125, “a plaintiff must allege an 

injury to a commercial interest in reputation or sales,” 

and that injury must be “proximately caused by violations 

of the statute.” Lexmark Int’l, Inc. v. Static Control 

Components, Inc., 134 S. Ct. 1377, 1390 (2014). In other 

words, “a plaintiff suing under § 1125(a) ordinarily must 

show economic or reputational injury flowing directly 

from the deception wrought by the defendant’s advertis4 Because we hold that Gravelle has failed to establish any injury caused by Kaba’s false marking, we need 

not decide whether a reduced price for the sale of his 

business is a “competitive injury” under the statute.

 
GRAVELLE v. KABA ILCO CORPORATION 11

ing; and that occurs when deception of consumers causes 

them to withhold trade from the plaintiff.” Id. at 1391.

Just as Gravelle’s evidence is insufficient to show that 

he suffered a competitive injury caused by Kaba’s false 

marking, so it is insufficient to show an economic injury, 

or a likelihood of economic injury, “proximately caused” by 

Kaba’s advertising. Citing Merck Eprova AG v. Gnosis 

S.p.A., 760 F.3d 247 (2d Cir. 2014), Gravelle argues that 

he is entitled to a presumption of injury because the 

parties were in direct competition. But Gravelle did not 

argue for a presumption in the district court, and in any 

event, Merck is inapposite, even aside from the fact that it 

comes from the Second Circuit, not the Fourth Circuit. 

Merck explicitly limits its holding to a two-player-market 

scenario, id. at 260–61, which the present case is not 

alleged to involve.5

Gravelle also contends that he need not show an actual injury because the Lanham Act provides for disgorge5 Gravelle also asserts that he is entitled to a presumption of consumer deception because the claims were 

literally false. The First, Second, Third, Eighth, and 

Eleventh Circuits have recognized such a presumption. 

Cashmere & Camel Hair Mfrs. Inst. v. Saks Fifth Ave., 

284 F.3d 302, 315–16 (1st Cir. 2002); Time Warner Cable, 

Inc. v. DIRECTV, Inc., 497 F.3d 144, 153 (2d Cir. 2007); 

Groupe SEB USA, Inc. v. Euro-Pro Operating LLC, 774 

F.3d 192, 198 (3d Cir. 2014); Rhone-Poulenc Rorer Pharm. 

Inc. v. Marion Merrell Dow, Inc., 93 F.3d 511, 516 (8th

Cir. 1996); Johnson & Johnson Vision Care, Inc. v. 1-800 

Contacts, Inc., 299 F.3d 1242, 1247 (11th Cir. 2002). 

However, that is a separate question from the issue of 

causation. See, e.g., Cashmere & Camel Hair, 284 F.3d at 

318 (holding that, although the plaintiff was entitled to a 

presumption of consumer deception, remand was required 

for further proceedings on causation).

 
12 GRAVELLE v. KABA ILCO CORPORATION

ment of profits under 15 U.S.C. § 1117(a). Although 

Gravelle is correct that he need not be able to “quantify 

[his] losses with sufficient certainty to recover damages” 

in order to have a cause of action, he still must show that 

the “defendant’s conduct has proximately injured an 

interest of the plaintiff’s that the statute protects.” 

Lexmark, 134 S. Ct. at 1392; see also Harold H. Huggins 

Realty, Inc. v. FNC, Inc., 634 F.3d 787, 802 (5th Cir. 

2011); Balance Dynamics Corp. v. Schmitt Indus., Inc., 

204 F.3d 683, 695 (6th Cir. 2000). Thus, the district court 

correctly held that “injury and damages are separate 

inquiries under the Lanham Act and that, without the 

former, there can be no entitlement to the latter.” J.A. 20. 

We affirm the entry of summary judgment for Kaba on 

Gravelle’s Lanham Act claim.

3

North Carolina’s Unfair and Deceptive Practices Act 

prohibits “[u]nfair methods of competition in or affecting 

commerce, and unfair or deceptive acts or practices in or 

affecting commerce.” N.C. Gen. Stat. § 75-1.1(a). “‘In 

order to establish a prima facie claim for unfair trade 

practices, a plaintiff must show: (1) [the] defendant committed an unfair or deceptive act or practice, (2) the action 

in question was in or affecting commerce, and (3) the act 

proximately caused injury to the plaintiff.’” Bumpers v. 

Cmty. Bank of N. Va., 747 S.E.2d 220, 226 (N.C. 2013) 

(quoting Dalton v. Camp, 548 S.E.2d 704, 711 (N.C. 

2001)). For the reasons already stated, Gravelle has 

failed to establish an injury caused by Kaba’s false marking. We therefore affirm the entry of summary judgment 

for Kaba on Gravelle’s state-law claim.

B

Federal Rule of Civil Procedure 37(a) requires that 

where a motion to compel is granted, the court “must . . . 

require the party or deponent whose conduct necessitated 

the motion . . . to pay the movant’s reasonable expenses 
GRAVELLE v. KABA ILCO CORPORATION 13

incurred in making the motion” unless, among other 

things, the “the opposing party’s nondisclosure, response, 

or objection was substantially justified.” Fed. R. Civ. P. 

37(a)(5)(A). The district court awarded Kaba $3,031.25 to 

reimburse its expenditures related to its motion to compel 

Gravelle to attend his deposition. On appeal, Gravelle 

contends that he was substantially justified in not attending his already-once-postponed deposition of April 29, 

2015, because he had a “doctors note advising [him] not to 

fly”; he was subject to “a conflicting court order which 

compelled [his] personal attendance before a civil court 

motion judge, for a hearing taking place in Ontario, 

Canada”; and “[l]ast minute International travel proved 

impossible, due to ongoing inquiry by Homeland Security, 

as initiated by [him], and cost prohibited nature for 

airline tickets, lodging, car rental, etc.” Appellant’s Br. 

13. 

The district court, in its brief text order, indicated its 

adoption of Kaba’s reasons stated in its motion. Those 

reasons make clear that the court did not abuse its discretion in awarding this reimbursement.

First, the doctor’s note in the record is dated January 

29, 2015, and says only: “recommend defer flight next 

week due to medical reasons.” Kaba’s Mot. to Compel Ex.

D. The district court could reasonably find that this note 

did not indicate that it would be medically dangerous for 

Gravelle to fly three months later, around April 29, 2015. 

Second, the Canadian court order states: “The motion 

to amend the Statement of Claim shall be returnable on 

April 30, 2015 on notice to the Defendants.” J.A. 347. On 

its face, that order imposes only a filing deadline, and 

there is no other evidence that the court required Gravelle 

to personally attend court on that day. Furthermore, 

Kaba offered to start Gravelle’s deposition early on the 

29th to allow him to catch a particular evening flight to 

Thunder Bay, Ontario, on which seats were available, so 
14 GRAVELLE v. KABA ILCO CORPORATION

that he could still attend court in Canada the following 

day. Kaba’s Mot. to Compel at 4–5, Exs. H–J. The district court could reasonably determine that the Canadian 

court order was not an obstacle to Gravelle’s attending an 

April 29, 2015 deposition.

Third, regarding the Homeland Security inquiry, 

Gravelle’s opposition to Kaba’s request for reimbursement

indicates that Gravelle had been experiencing delays 

entering the United States, and as a result he initiated a 

redress inquiry. He received a letter from Homeland 

Security on July 17, 2015, that neither confirmed nor 

denied that his personal information was similar to a 

listing on the terrorist watchlist and encouraged him to 

use his redress number when making flight reservations. 

These facts do not indicate that Gravelle was prohibited 

from travelling to the United States or would have been 

unable to enter the country in April 2015, only that he 

may have experienced delays in doing so.

Finally, Gravelle complains that the “last-minute” international travel was cost prohibitive. But Gravelle’s 

deposition was noticed on April 7, 2015, giving him twenty-two days to plan his international travel. Kaba’s Mot. 

to Compel Ex. F. Furthermore, Kaba’s attorney had 

conferred with Gravelle before noticing his deposition to 

confirm that Gravelle would be available on April 29 and 

acceded to Gravelle’s preference for the deposition to take

place in Charlotte because it was easier for Gravelle to fly 

there than to other places in North Carolina. Id. at 

Attachement ¶ 5.

For those reasons, we affirm the district court’s Reimbursement Order.

C

The district court awarded Kaba attorneys’ fees for all 

three of Gravelle’s causes of action. Unusual circumstances are present here: we have questions about the 
GRAVELLE v. KABA ILCO CORPORATION 15

soundness of the stated bases for the award and no meaningful help from the parties in reviewing the award. In 

various situations, we have vacated and remanded for 

further consideration where “[w]e are unable to provide 

appellate review to the court’s exercise of discretion.” S.C. 

Johnson & Son, Inc. v. Carter-Wallace, Inc., 781 F.2d 198, 

201 (Fed. Cir. 1986) (exceptional case determination); see, 

e.g., High Point Design LLC v. Buyers Direct, Inc., 730 

F.3d 1301, 1319 (Fed. Cir. 2013) (amendment of pleadings); Paice LLC v. Toyota Motor Corp., 504 F.3d 1293, 

1315 (Fed. Cir. 2007) (ongoing royalties). The particular 

reason for that inability here may be unique to this case, 

but the result, we conclude, should be the same: vacatur 

and remand for further consideration. 

In this court, Gravelle, proceeding pro se, amended 

his original notice of appeal so as specifically to add the 

Fees Order to the appeal, and he included a challenge to 

the Fees Order in the “informal brief” he subsequently 

filed under this Court’s Rule 28(g), using the questionand-answer format of this Court’s Form 12. In the informal brief, Gravelle extensively laid out his disagreement 

with various determinations by the district court, including the key determination that he had provided no proof 

of injury caused by the challenged conduct. In his answer 

to Form 12’s question # 6 (“What action do you want the 

court to take in this case?”), he included this separately 

numbered statement: “2. Plaintiff further requests that 

this court reverse the District Court Order granting 

Kaba’s motion for attorney fees. [See A23–29].” Appellant’s Br. 12. Gravelle thus appealed the Fees Order.

In his informal brief, however, Gravelle did not present separate analyses of why the Fees Order and the 

Summary Judgment Order should be reversed. In the 

absence of separate arguments, his challenge to the Fees 

Order could reasonably be read as entirely dependent on 

his challenge to the Summary Judgment Order, i.e., as 

contending only that, if summary judgment was reversed,
16 GRAVELLE v. KABA ILCO CORPORATION

reversal of the fees award followed a fortiori. Kaba appears to have so read Gravelle’s challenge to the Fees 

Order: in its brief, Kaba nowhere defends, or even discusses, the Fees Order, evidently treating that order as 

standing or falling with the Summary Judgment Order.

But that understanding of Gravelle’s challenge on appeal to the Fees Order is not the only permissible one. 

This court generally interprets the pleadings of a pro se 

plaintiff liberally. See, e.g., Durr v. Nicholson, 400 F.3d 

1375, 1380 (Fed. Cir. 2005). Our Form 12 for informal 

briefs, which Gravelle used, contemplates considerable 

informality, which is reflected in practice. And in this 

case, when Kaba sought fees, the district court proceeded 

to apply the legal standards governing fees—which are 

more demanding than the standard Kaba had to meet to 

secure summary judgment—even though Gravelle did not 

file an opposition to the fees motion, let alone present an 

argument against fees distinct from his earlier argument 

against summary judgment. In these circumstances, 

Gravelle’s informal brief can reasonably be read, and we 

concluded it should be read, as a request that this court

determine whether the causation evidence passed the test 

of non-frivolousness even if it did not entitle him to a 

trial.

Nevertheless, neither Gravelle nor Kaba has provided 

any meaningful help in evaluating the Fees Order under 

the governing standards. We would affirm if we were 

persuaded, from our own independent review, that there 

is no potentially result-changing error in the Fees Order. 

But the award of fees here is not so self-evidently correct

that we think the Order should be affirmed, even under 

the abuse-of-discretion standard of review, without further consideration on remand given the absence of meaningful argument in this court.

The common basis of the district court’s award on all 

three causes of action was the court’s conclusion that 
GRAVELLE v. KABA ILCO CORPORATION 17

Gravelle’s case for causation of injury was not only insufficient to create a triable issue but actually frivolous. 

Fees Order 3; see id. at 5–6.6 As an indication of frivolousness, the district court twice cited a page of Gravelle’s 

deposition. Id. at 4 n.1, 6. Given the court’s invocation of 

the deposition in discussing the causation issue, we take 

the court to have read the deposition passage as indicating Gravelle’s agreement that he lacked proof of damages 

caused by Kaba’s false marking.

Such a reading of the cited passage from Gravelle’s 

deposition appears to be clearly erroneous. The passage

says only that (the un-counseled) Gravelle would drop the 

Second Claim for Relief of his Complaint, which sought 

(aside from disgorgement of Kaba’s profits) only the $500-

per-unit fine that the 2011 amendments to 35 U.S.C. 

§ 292(a) newly restricted to suits by the federal government. See J.A. 46 (Complaint); Kaba Ilco’s App’x to 

Statement of Material Facts in Support of its Mot. for 

Summ. J. Ex. 1 at 169:1–20, Gravelle v. Kaba Ilco Corp., 

No. 5:13-cv-642-FL (E.D.N.C. Dec. 9, 2015), ECF No. 55. 

The passage does not on its face concede lack of injury 

caused by Kaba’s false marking. Moreover, in opposing 

summary judgment, Gravelle explained that he had not 

conceded that issue, J.A. 169, and the district court, in 

granting Kaba summary judgment, ruled on the falsemarking claim on the merits of the causation issue, nowhere referring in that ruling to the supposed deposition 

concession. 

6 A plaintiff may lose its claims on summary judgment without that fact requiring a fee award or implying 

that the claims were objectively unreasonable or frivolous. 

See, e.g., Aspex Eyewear Inc. v. Clariti Eyewear, Inc., 605 

F.3d 1305, 1315 (Fed. Cir. 2010) (in patent context); 

Kohler v. Bed Bath & Beyond of California, LLC, 780 F.3d 

1260, 1266–67 (9th Cir. 2015) (non-patent context). 

 
18 GRAVELLE v. KABA ILCO CORPORATION

More broadly, while we agree that Gravelle lacked 

sufficient evidence of injury caused by Kaba’s conduct to 

permit a reasonable finding of causation, we think, on the 

limited analysis before us, that the question of whether 

the evidence crossed the triable-issue threshold was a 

closer one than the district court concluded. It is not 

implausible that in some markets a number of potential 

customers, choosing between two similar machines, one 

marked “patent pending” and the other not, will buy the 

marked one because they think that buying the unmarked 

one exposes them to the risk of later infringing a patent of 

the seller of the marked one. The problem with Gravelle’s 

case, on the merits, is that he did not point to enough 

evidence to permit a reasonable finding that the foregoing 

mechanism (or anything similar) would be at work for the 

customers of the particular machines in the particular 

market at issue here. But the assessment of frivolousness 

in this case, for purposes of attorneys’ fees, focuses on a 

different question—namely, what a litigant could reasonably believe would constitute sufficient evidence to allow 

a reasonable inference of harm caused by the false marking. 

On that issue, it is not clear to us, with nothing but 

the district court’s opinion to go on, why that question is 

properly answered against Gravelle. The sufficiency of 

evidence to support a finding that Kaba’s marking caused 

Gravelle competitive harm turns on judgments, as the 

district court indicated, about what is “reasonable to 

expect” or “plausible.” Summary Judgment Order 12, 13. 

Here, Gravelle is deeply involved in this market, and he 

offered his own opinion that customers “could” be influenced by a “patent pending” marking. See J.A. 68. Standing alone, that is too speculative, as we have held in 

affirming the grant of summary judgment. But it is not 

clear that a person in Gravelle’s position should be 

charged with understanding that merely possible influence (“could”) is inadequate and that “influence” cannot be 
GRAVELLE v. KABA ILCO CORPORATION 19

asserted in a wholly general manner, but must be supported by evidence, whether from customers or others, 

concretely showing how customers would have been 

influenced by a marking in the specific market. 

We avoid drawing final conclusions about the award 

of fees in this case. Without any helpful analysis on 

appeal, we conclude that the matter warrants further 

consideration. We therefore vacate the Fees Order and 

remand for such reconsideration.

III

For the foregoing reasons, we affirm the district 

court’s summary judgment order and its order reimbursing Kaba for $3,031.25 in fees related to its motion to 

compel, but we vacate its order awarding attorneys’ fees

and remand for further proceedings on that issue. 

No costs.

AFFIRMED IN PART, VACATED IN PART, 

REMANDED