NOVA CHEMICALS CORPORATION (CANADA), NOVA CHEMICALS INC. (DELAWARE), Plaintiffs-Appellants
DOW CHEMICAL COMPANY, Defendant-Appellee
from the United States District Court for the District of
Delaware in No. l:13-cv-01601-LPS, Chief Judge Leonard P.
Robert Dunner, Finnegan, Henderson, Farabow, Garrett &
Dunner, LLP, Washington, DC, argued for
plaintiffs-appellants. Also represented by Mark J. Feldstein,
Darrell Christopher Karl.
RAYMOND N. Nimrod, Quinn Emanuel Urquhart & Sullivan,
LLP, New York, NY, argued for defendant-appellee. Also
represented by William Adams, Cleland B. Welton, II; Harry J.
Roper, Aaron A. Barlow, Paul David Margolis, Jenner &
Block LLP, Chicago, IL.
Prost, Chief Judge, DYK and HUGHES, Circuit Judges.
Chemicals Corp. (Canada) and NOVA Chemicals Inc. (Delaware)
(collectively, "NOVA") appeal the district
court's award of approximately $2.5 million in attorney
fees to Dow Chemical Co. ("Dow") under 35 U.S.C.
§ 285. NOVA filed the underlying action in equity,
seeking relief from a prior judgment that it had infringed
certain Dow patents. The only issue in this appeal is whether
the district court abused its discretion in finding this case
exceptional for purposes of § 285. Because it did not
abuse its discretion, we affirm.
provide only a brief summary of the background, which is
recounted in more detail in our opinions addressing the
merits of the underlying patent litigation. See Dow Chem.
Co. v. Nova Chems. Corp. (Canada) ('Dow 7"),
458 F.App'x 910 (Fed. Cir. 2012); see also Dow Chem.
Co. v. Nova Chems. Corp. (Canada) ("Dow IF), 803
F.3d 620, 635 (Fed. Cir. 2015), cert, denied, 136
S.Ct. 2452 (2016).
2005, Dow filed an infringement action in the U.S. District
Court for the District of Delaware, alleging that NOVA
infringed U.S. Patent No. 5, 847, 053 and U.S. Patent No. 6,
111, 023 ("the asserted patents"). NOVA asserted
numerous defenses, including arguments that the accused
product did not infringe and that Dow lacked standing to sue
because it had transferred ownership of the asserted patents.
The court held a jury trial, followed by a bench trial on
standing. The district court ultimately held that Dow had
standing to sue and entered judgment against NOVA for over
$61 million in damages ("the 2010 judgment"). J.A.
442; see also Dow Chem. Co. v. Nova Chems. Corp.
(Canada), 726 F.Supp.2d 459 (D. Del. 2010); Dow
Chem. Co. v. Nova Chems. Corp. (Canada), No. 05-737-JJF,
2010 WL 3070189 (D. Del. July 30, 2010); Dow Chem. Co. v.
Nova Chems. Corp. (Canada), No. 05-737-JJF, 2010 WL
3056617 (D. Del. July 30, 2010). We affirmed that judgment on
appeal. Dow I, 458 F.App'x at 921.
separate appeal from the district court's subsequent
award of supplemental damages, we held the asserted patent
claims to be invalid as indefinite under the Supreme
Court's intervening indefiniteness standard in
Nautilus, Inc. v. Biosig Instruments, Inc., 134
S.Ct. 2120 (2014). Dow II, 803 F.3d at 635. Our
decision in Dow II did not disturb the 2010 judgment
relating to pre-verdict infringement. The district court had
entered final judgment pursuant to Federal Rule of Civil
Procedure 54(b), which NOVA had already paid at the time of
the second appeal.
the supplemental-dam ages phase of the infringement action,
NOVA became aware of evidence allegedly showing that Dow and
its counsel had committed fraud on the court in the course of
obtaining the 2010 judgment. By then, however, NOVA was
time-barred from filing a motion under Federal Rule of Civil
Procedure 60(b)(3) to set aside that judgment for fraud,
misrepresentation, or misconduct. See Fed. R. Civ.
P. 60(c)(1) (setting a one-year time bar). Accordingly, in
September 2013, NOVA filed a separate action in equity
against Dow ("the equity action") for relief from
the 2010 judgment.
amended complaint, NOVA alleged two frauds on the court.
First, NOVA asserted with respect to standing that Dow and
its counsel had misrepresented Dow's ownership of the
asserted patents. NOVA based this allegation on the testimony
of a former Dow tax department employee, Edward Valenzuela,
in an unrelated Louisiana tax case ("the Louisiana
action"). Mr. Valen-zuela testified in that case:
"I think [around the end of 2001] all of Dow's
patents were contributed to an intangible holding
company." J.A. 22554.
NOVA alleged that Dow's counsel knew or should have known
of a "scheme to mislead the jury" with respect to
infringement. J.A. 21055, 21081, 21087, 21089 (capitalization
omitted). In particular, NOVA contended that Dow's
expert, Dr. Joao Soares, had provided conflicting testimony
about testing on the ...