Opinions — Wednesday, May 6, 2026

The Ninth Circuit affirmed summary judgment for Igloo Products Corporation in Vericool World LLC's false advertising action under Lanham Act § 43(a)(1)(B), holding that statements claiming to be "the world's first" biodegradable cooler to market did not misrepresent the "nature, characteristics, qualities, or geographic origin" of goods. Vericool alleged that Igloo falsely claimed its Recool cooler was the first biodegradable cooler when Vericool had marketed its Ohana cooler earlier, thereby robbing Vericool of "the cachet that comes from producing a pioneering product" and causing media to describe Vericool's product as "not the first of its species." The court held that temporal priority—being first to market—does not constitute a "characteristic" under § 43(a)(1)(B) because characteristics must be "observable aspect[s] of the tangible product" rather than "ideas or communications that goods embody or contain," and that Vericool's claim impermissibly sought to vindicate interests protected exclusively by patent law. The court ruled Vericool waived on appeal any argument that Igloo's statements confused consumers about whether the Ohana was actually biodegradable. Judge Bumatay dissented, arguing that "nature, characteristics, or qualities" encompasses intangible attributes, not merely observable physical features.

The majority's doctrinal move extends Dastar Corp. v. Twentieth Century Fox Film Corp. and Sybersound Records, Inc. v. UAV Corp. to bar false advertising claims premised on misrepresentations about innovation priority or first-mover status, holding that such claims concern "the origin of an idea embodied in" products rather than product characteristics themselves. The court distinguished between marketplace confusion about which company produced a tangible product (actionable under § 43(a)(1)(A) as reverse passing off) and confusion about which company first invented or commercialized a product concept (not actionable because it implicates patent law's carefully calibrated novelty and non-obviousness requirements). The majority rejected arguments that "first to market" status implies superior quality or that consumer perception of being a "knock-off" relates to tangible characteristics, reasoning that temporal market entry is not observable from the product itself and that allowing such claims would permit plaintiffs to circumvent patent law's standing requirements and substantive limitations. The dissent contended that characteristics include intangible qualities and that claiming another's product is a derivative "knock-off" misrepresents its quality, urging that Dastar applies only to § 43(a)(1)(A) and that Sybersound's "characteristic of the good itself" test concerned only copyright workarounds.

The Federal Circuit affirmed the district court's award of attorney fees to Hyper Bicycles, Inc. under 35 U.S.C. § 285 in a patent infringement suit brought by Fa-Hsing Lu. After the district court granted summary judgment for Hyper—a decision affirmed on appeal—it found the case "exceptional" based on Lu's lack of good faith prosecution and his litigation conduct that unnecessarily prolonged the case. The district court awarded fees incurred after January 3, 2022, the date Lu's counsel "should have known" the claims were meritless.

The court applied abuse of discretion review to all aspects of the § 285 determination, emphasizing the district court's superior position to assess exceptionality given its prolonged exposure to the case. The Federal Circuit found the exceptionality finding well-supported by evidence that Lu requested four extensions to discovery deadlines yet never propounded written discovery, took depositions, or named experts; submitted cursory summary judgment briefing that violated local rules; and possessed no records identifying infringing products from at least the January 2022 cutoff date. The temporal limitation of the fee award—starting from the date counsel should have recognized the claims' lack of merit rather than from filing—illustrates the court's fact-intensive approach to tailoring § 285 relief to the specific circumstances justifying it.

The Federal Circuit affirmed the Patent Trial and Appeal Board's decision finding claim 18 of U.S. Patent No. 9,978,205 not unpatentable in DK Crown Holdings Inc. v. AG 18, LLC. The patent relates to location-based restrictions on online gaming. DK's IPR petition challenged claim 18 only under grounds relying on Bryson alone, while separately challenging dependent claims 15–17 (from which claim 18 also depends) under a ground combining Bryson with Schlottmann. After institution, DK attempted via reply footnote to assert the Bryson-Schlottmann combination against claim 18, but the Board refused to consider this as an impermissible new ground, and DK appealed.

The court held the Board did not abuse its discretion in rejecting the late-raised ground, distinguishing Voice Tech Corporation v. Unified Patents, LLC because DK's petition contained no cross-reference or other indication that Ground 3 was intended to apply to claim 18, unlike the typographical error with clarifying context in Voice Tech. The court also rejected DK's collateral estoppel argument that claim 18 must be invalid because the Board invalidated other claims that, in the aggregate, contain all of claim 18's limitations, noting DK failed to meet its burden under Ohio Willow Wood and that the court had never applied collateral estoppel by "cobbling together limitations from disparate claims."