Gravelle v. Kaba Ilco Corporation , 684 F. App'x 974 ( 2017 )

NOTE: This disposition is nonprecedential.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 Manufactur-
ing, 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 false-
marking 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 be-
fore 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-cv-
642-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 award-
ing attorneys’ fees and remand on that issue for further
consideration.
GRAVELLE v. KABA ILCO CORPORATION 3
I
Gravelle has been designing, marketing, and distrib-
uting electronic key-cutting machines for more than 20
years. From 1998 until around 2014, Gravelle sold a key-
cutting 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. Be-
tween 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 fea-
tures 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 “pa-
tent 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 East-
ern 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 Feb-
ruary 10, 2015, the court granted the parties’ joint re-
quest for an extension of the discovery deadline through
April 30, 2015, because Gravelle had undergone ear
surgery and could not attend a previously noticed deposi-
tion. The parties indicated that Gravelle would be avail-
able 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 De-
cember 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 re-
lated entities. Those other entities were dismissed from
the suit in 2014, and Gravelle does not contest that dis-
missal.
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 plead-
ing” 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 judg-
ment 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 infer-
ences 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 insuffi-
cient 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 af-
fix[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 deceiv-
ing 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 intro-
duced 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.; Presid-
io 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) (quot-
ing 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 estab-
lish a competitive injury and therefore lacked statutory
standing. Although the parties disputed whether Grav-
elle 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 admis-
sion, no reasonable jury could infer from Gravelle’s de-
cline 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 mil-
lion. 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 reasona-
ble 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, unsubstan-
tiated, and self-serving allegations” insufficient to estab-
lish 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 pur-
chase 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 lock-
smith 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 proposi-
tion, 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 prod-
uct 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 Grav-
elle’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 com-
merce 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 advertis-
4 Because we hold that Gravelle has failed to estab-
lish 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 actu-
al injury because the Lanham Act provides for disgorge-
5 Gravelle also asserts that he is entitled to a pre-
sumption 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 com-
mitted 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 mark-
ing. 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 attend-
ing 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 discre-
tion 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 dis-
trict 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” in-
ternational travel was cost prohibitive. But Gravelle’s
deposition was noticed on April 7, 2015, giving him twen-
ty-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 Reim-
bursement Order.
C
The district court awarded Kaba attorneys’ fees for all
three of Gravelle’s causes of action. Unusual circum-
stances are present here: we have questions about the
GRAVELLE v. KABA ILCO CORPORATION 15
soundness of the stated bases for the award and no mean-
ingful 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 plead-
ings); 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 question-
and-answer format of this Court’s Form 12. In the infor-
mal brief, Gravelle extensively laid out his disagreement
with various determinations by the district court, includ-
ing 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].” Appel-
lant’s Br. 12. Gravelle thus appealed the Fees Order.
In his informal brief, however, Gravelle did not pre-
sent 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 ap-
pears to have so read Gravelle’s challenge to the Fees
Order: in its brief, Kaba nowhere defends, or even dis-
cusses, the Fees Order, evidently treating that order as
standing or falling with the Summary Judgment Order.
But that understanding of Gravelle’s challenge on ap-
peal 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 fur-
ther consideration on remand given the absence of mean-
ingful 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 insuf-
ficient to create a triable issue but actually frivolous.
Fees Order 3; see id. at 5–6. 6 As an indication of frivo-
lousness, 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 indicat-
ing 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 govern-
ment. 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 false-
marking claim on the merits of the causation issue, no-
where referring in that ruling to the supposed deposition
concession.
6 A plaintiff may lose its claims on summary judg-
ment 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 reason-
ably believe would constitute sufficient evidence to allow
a reasonable inference of harm caused by the false mark-
ing.
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 influ-
enced by a “patent pending” marking. See J.A. 68. Stand-
ing 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 influ-
ence (“could”) is inadequate and that “influence” cannot be
GRAVELLE v. KABA ILCO CORPORATION 19
asserted in a wholly general manner, but must be sup-
ported 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 reimburs-
ing 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