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B.E. Technology, L.L.C. v. Facebook, Inc.

United States Court of Appeals, Federal Circuit

October 9, 2019

B.E. TECHNOLOGY, L.L.C., Plaintiff-Appellant
v.
FACEBOOK, INC., Defendant-Appellee

          Appeal from the United States District Court for the Western District of Tennessee in No. 2:12-cv-02769-JPM-tmp, Chief Judge Jon P. McCalla.

          Daniel J. Weinberg, Freitas & Weinberg LLP, Redwood Shores, CA, argued for plaintiff-appellant. Also represented by Kayla Ann Odom.

          Emily E. Terrell, Cooley LLP, Washington, DC, argued for defendant-appellee. Also represented by Heidi Lyn Keefe, Palo Alto, CA; Orion Armon, Broomfield, CO.

          Before Lourie, Plager, and O'Malley, Circuit Judges.

          OPINION

          Lourie, Circuit Judge.

         B.E. Technology, L.L.C. ("B.E.") appeals from a decision of the United States District Court for the Western District of Tennessee affirming the Clerk's Order finding Facebook, Inc. ("Facebook") to be the prevailing party in their lawsuit and taxing $4, 424.00 in costs against B.E. B.E. Tech., LLC v. Facebook, Inc., No. 2:12-cv-2769-JPM-TMP, 2018 WL 3825226, at *1 (W.D. Tenn. Aug. 10, 2018) ("Decision"). For the reasons detailed below, we affirm.

         Background

         On September 7, 2012, B.E. filed suit in the Western District of Tennessee accusing Facebook of infringing claims 11, 12, 13, 15, 18, and 20 of its U.S. Patent 6, 628, 314 ("the '314 patent"). Approximately a year into the case, Fa-cebook and two other parties B.E. had also accused of infringement, Microsoft and Google, filed multiple petitions for inter partes review of the asserted claims. The district court stayed its proceedings in this case pending the outcome of the Board's review. B.E. Tech., LLC v. Amazon Digital Servs., Inc., No. 2:12-cv-2767-JPM-TMP, 2013 WL 12158571, at *1 (W.D. Tenn. Dec. 6, 2013).

         The Board instituted review of the '314 patent and held the claims unpatentable in three final written decisions. See Google, Inc. v. B.E. Tech., LLC, Nos. IPR2014-00038, IPR2014-00699, 2015 WL 1735099, at *1 (P.T.A.B. Mar. 31, 2015); Microsoft Corp. v. B.E. Tech., LLC, Nos. IPR2014-00039, IPR2014-00738, 2015 WL 1735100, at *1 (P.T.A.B. Mar. 31, 2015) ("Microsoft Decision"); Facebook, Inc. v. B.E. Tech., LLC, Nos. IPR2014-00052, IPR2014-00053, IPR2014-00698, IPR2014-00743, IPR2014-00744, 2015 WL 1735098, at *2 (P.T.A.B. Mar. 31, 2015). B.E. appealed, and we affirmed the Microsoft Decision, dismissing the remaining appeals as moot. B.E. Tech., LLC v. Google, Inc., Nos. 2015-1827, 2015-1828, 2015-1829, 2015-1879, 2016 WL 6803057, at *1 (Fed. Cir. Nov. 17, 2016).

         Facebook then moved in the district court for judgment on the pleadings under Fed.R.Civ.P. 12(c), seeking a dismissal with prejudice and costs under Rule 54(d). B.E. agreed that dismissal was appropriate but argued that the claims should be dismissed for mootness, rather than with prejudice. The district court ultimately agreed with B.E., issuing an Order holding that, "[i]n light of the cancellation of claims 11-22 of the '314 patent, B.E. no longer ha[d] a basis for the instant lawsuit" and that its patent infringement "claims [were] moot." J.A. 37. As for costs, the court initially declined to award Facebook costs because the request was lodged before entry of judgment. J.A. 39.

         Facebook renewed its motion for costs after judgment was entered, and this time the district court awarded costs under Rule 54(d). The Clerk of Court held a hearing on the motion and ultimately taxed $4, 424.20 in costs against B.E. B.E. sought review by the court, and the court affirmed. In its decision, the court relied on CRST Van Expedited, Inc. v. E.E.O.C., 136 S.Ct. 1642 (2016), to hold that, although the case was dismissed for mootness, Face-book "obtained the outcome it sought: rebuffing B.E.'s attempt to alter the parties' legal relationship." Decision, 2018 WL 3825226, at *2. The court thus held Facebook to be the prevailing party in B.E.'s lawsuit and affirmed the Clerk's order.

         B.E. timely appealed, and we have jurisdiction under 28 U.S.C. § 1295(a).

         Discussion

         The Federal Rules of Civil Procedure provide that "[u]nless a federal statute, these rules, or a court order provides otherwise, costs-other than attorney's fees-should be allowed to the prevailing party." Fed.R.Civ.P. 54(d)(1) (emphasis added). The district court determined here that Facebook was the prevailing party, and we review the court's interpretation of the term "prevailing party" de novo, Highway Equip. Co. v. FECO, Ltd., 469 F.3d 1027, 1032 (Fed. Cir. 2006), and apply Federal Circuit law, Manildra Milling Corp. v. Ogilvie Mills, Inc., 76 F.3d 1178, 1182 (Fed. Cir. 1996). We interpret the term consistently between different fee-shifting statutes, CRST, 136 S.Ct. at 1646, and between Rule 54(d) and 35 U.S.C. § 285, Raniere v. Microsoft Corp., 887 F.3d 1298, 1307 n.3 (Fed. Cir. 2018) ("We have treated the prevailing party issue under Rule 54 and ยง 285 in a similar ...


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