E-Pass Technologies v. 3Com (which includes Palm), Visa, and Access Systems Americas (CAFC 2008-1144, -1145, -1146, -1470, -1471, -1472) precedential

The CAFC slapped E-Pass too.

"If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee." Fed. R. App. P. 38. An appeal can be "frivolous as filed" and/or "frivolous as argued." An appeal is frivolous as filed "when an appellant grounds his appeal on arguments or issues that are beyond the reasonable contemplation of fair-minded people, and no basis for reversal in law or fact can be or is even arguably shown." Abbs v. Principi, 237 F.3d 1342, 1345 (Fed. Cir. 2001) (internal quotations omitted). An appeal is frivolous as argued "when an appellant has not dealt fairly with the court, [or] has significantly misrepresented the law or facts." Id.

We consider this appeal, as it relates to PalmSource, frivolous.

E-Pass didn't sufficiently identify a ground for appeal (i.e., reversal of the district court). "[M]ultiple misrepresentations to the court" by E-Pass also did not go over well.

But litigation misconduct is a central issue--the district court specifically concluded that E-Pass had engaged in repeated litigation misconduct, including, in particular, its shifting legal theories.

Assuming for the sake of argument that E-Pass did make a non-frivolous (yet ultimately unmeritorious) argument, it would not change our determination that the appeal as a whole is frivolous. "We have held that even the presence of a few non-frivolous arguments does not prevent an appeal as a whole from being deemed frivolous." Romala, 927 F.2d at 1224 (citing In re Perry, 918 F.2d 931, 934-35 (Fed. Cir. 1990) ("When an appeal is a 'complete loser,' most of which is 'patently groundless,' sanctions should be imposed under Rule 38.")). The tactics employed by E-Pass in this appeal, including both the misrepresentations made and the failure to cogently identify any reversible error of the district court, far outweigh any non-frivolous argument that may be lurking in its briefs.

You know you're in a world of hurt when the best thing said about your appeal is that there may be "non-frivolous argument" "lurking in" your "briefs." It even sounds pornographic.

But perhaps not as pornographic as the majority would have you think. Judges Linn and Prost were in a majority, with Judge Bryson dissenting to spare E-Pass a few lashes.

While I do not take issue with most of the majority's criticisms of the appellant's presentation in this court, I would not impose sanctions.

As to the misrepresentations in E-Pass's brief, I agree that certain statements in the brief strayed beyond the limits of fair advocacy and into the realm of falsehood... The other instances of misleading conduct pointed out by the majority are not as serious.

As I see it, then, the question for us is whether sanctions should be imposed because of an unduly aggressive characterization of a comment by the district court, a failure to provide the full text of an applicable legal test on the second occasion that the test was set forth, and a failure to explain whether only one issue on appeal was applicable to Palmsource, or if more than one issue was applicable to Palmsource, what the legal basis for Palmsource's liability would be. Accepting that in those regards E-Pass's briefs on appeal fell short of the standards we expect of counsel in this court, I nonetheless conclude that the shortfall is not so egregious as to call for the imposition of sanctions.