Dynamite Marketing, Inc. v. the Wowline, Inc., Sherman Specialty LLC, Sherman Specialty, Inc

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DYNAMITE MARKETING, INC.,
Plaintiff-Appellee
v.
THE WOWLINE, INC., SHERMAN SPECIALTY LLC,
SHERMAN SPECIALTY, INC,
Defendants-Appellants
WWW.SUPERIORPROMOS.COM,
WWW.USIMPRINTS.COM,
WWW.4ALLPROMOS.COM, UNKNOWN WEBSITES
1-10, VARIOUS JOHN DOES 1-10, UNKNOWN
ENTITIES 1-10,
Defendants
-------------------------------------------------
DYNAMITE MARKETING, INC.,
Plaintiff
v.
4TH DIMENSON INNOVATIONS, INC., BY AND
THROUGH ITS FORMER OFFICER LAERIK
COOPER, LAERIK COOPER,
Defendants
______________________
2024-1523, 2024-1525
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DYNAMITE MARKETING, INC. v. THE WOWLINE, INC. 2
______________________
Appeals from the United States District Court for the
Eastern District of New York in Nos. 2:19-cv-03067-GRB-
LGD, 2:22-cv-01627-GRB-AYS, Magistrate Judge Gary R.
Brown.
______________________
Decided: September 12, 2025
______________________
MICHAEL CUKOR, McGeary Cukor, Bernardsville, NJ,
argued for plaintiff-appellee. Also represented by VINCENT
MCGEARY.
JEFFREY LOUIS SNOW, Pryor Cashman LLP, New York,
NY, argued for defendants-appellants. Also represented by
JOSEPH VINCENT MICALI.
______________________
Before PROST, CLEVENGER, and CUNNINGHAM, Circuit
Judges.
CLEVENGER, Circuit Judge.
Sherman Specialty, Inc., d/b/a The WowLine, Inc., and
Sherman Specialty, LLC (collectively “Sherman”) appeal
the final decision of the United States District Court for the
Eastern District of New York (“District Court”), denying
Sherman’s post-verdict motions for inventorship, invalid-
ity, and non-infringement of Dynamite Marketing, Inc.’s
(“Dynamite”) U.S. Patent No. D751,877 S (“D877 Patent”),
denying remittitur or a new trial on the jury’s award of lost
profit damages to Dynamite, and awarding Dynamite at-
torney’s fees. For the reasons stated below, we dis-
miss-in-part and affirm-in-part.
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DYNAMITE MARKETING, INC. v. THE WOWLINE, INC. 3
BACKGROUND
I
In early 2013, Alexander Shlaferman (“Shlaferman”),
the principal of Vante Inc. (“Vante”), conceived of a design
for a rectangular credit-card sized multi-tool, later named
the Wallet Ninja. After creating preliminary sketches,
Shlaferman contracted the freelance services of a mechan-
ical engineer, LaErik Cooper (“Cooper”), to create manufac-
turing drawings for the Wallet Ninja. Through their
frequent communication, the Wallet Ninja’s design itera-
tively evolved into its final form, submitted in the applica-
tion for the D877 Patent.
Cooper acknowledged that Shlaferman was “in charge
of the project” for the design process and “had the final say
on every single design.” J.A. 4614. Throughout the pa-
tent’s prosecution, Shlaferman’s patent attorney was
aware of Cooper’s involvement with the Wallet Ninja and
communicated directly with Cooper about producing the
drawings for the patent application. Cooper never asked to
be included as an inventor on the application. Over two
years after filing the application, on March 22, 20161, the
D877 Patent was granted listing Shlaferman as the sole in-
ventor. The Wallet Ninja boasted many features, including
a ruler, various sized screwdrivers, a set of hex wrenches,
a letter opener, can opener, and box cutter. The Wallet
Ninja product, incorporating Shlaferman’s design, and the
D877 Patent are depicted below.
1 Prior to the patent’s issuance, Shlaferman assigned
all his rights in the D877 Patent’s application to Vante. He
reassigned those rights to Dynamite Marketing, Inc.,
Vante’s successor, on May 18, 2018.
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DYNAMITE MARKETING, INC. v. THE WOWLINE, INC. 4
Figure 1: The Wallet Ninja Figure 2: D877 Patent (solid
lines show the claimed design)
The Wallet Ninja began selling in 2014. By mid-2017,
approximately 1.9 million units had been sold. In March
2017, Robert Davila, an executive at Dynamite’s competi-
tor Sherman, emailed pictures of the Wallet Ninja to three
independent entities, requesting them to source the prod-
uct. In July 2017, Sherman began selling its own series of
wallet-compatible multi-tool products, titled the TOL4 se-
ries.2 Sherman received its first cease-and-desist letter on
behalf of Vante in early 2018.
Shortly thereafter, Sherman redesigned its TOL4 se-
ries of products (“Redesigned TOL4”). The changes to the
Redesigned TOL4 were minimal, reordering the hex nuts
along the bottom edge in descending size order and mirror-
ing the letter opener to the top left, along with other small
adjustments. A comparison of the D877 Patent to the Orig-
inal and Redesigned TOL4 products is presented below.
2 Sherman concedes that its first series of TOL4 prod-
ucts infringed the D877 Patent (“Original TOL4”).
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DYNAMITE MARKETING, INC. v. THE WOWLINE, INC. 5
Figure 2 (repeated): D877 Patent
(solid lines show the claimed design)
Figure 3: Original TOL4 Figure 4: Redesigned TOL4
Sherman received a second cease-and-desist letter in
2018 regarding the Redesigned TOL4. In a response letter,
Sherman stated it was confident that its new design did not
infringe the D877 Patent. Despite Sherman’s receipt of
both cease-and-desist letters, Sherman continued selling
its Original TOL4 and Redesigned TOL4 products until all
remaining units, estimated to be between 30–40,000 units,
were purchased.
II
Two disputes ensued. First, on May 22, 2019, Dyna-
mite sued Sherman in the District Court, alleging willful
infringement of the D877 Patent. Sherman counter-
claimed seeking declaratory judgment that Sherman’s
TOL4 products did not infringe, and that the D877 Patent
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DYNAMITE MARKETING, INC. v. THE WOWLINE, INC. 6
is invalid as obvious under 35 U.S.C. § 103 and invalid as
a primarily functional design. During discovery, the mat-
ter of Cooper’s assistance to Shlaferman surfaced and
raised the question of whether Cooper’s work amounted to
a contribution to the patent sufficient to require him to be
named the inventor, or at least a co-inventor, and thus
owner or co-owner. If Cooper was entitled to such status,
Dynamite’s suit against Sherman would require dismissal
because Dynamite failed to name Cooper as a plaintiff. See
Ethicon, Inc. v. U.S. Surgical Corp., 135 F.3d 1456, 1467–
68 (Fed. Cir. 1998) (“An action for infringement must join
as plaintiffs all co-owners.”). Consequently, in early 2021,
Dynamite sought Cooper’s voluntary agreement to be
added as a co-inventor of the D877 Patent and to assign all
his patent rights to Dynamite.
When that effort failed, Dynamite filed suit on Septem-
ber 21, 2021, in the United States District Court for the
Middle District of Florida against Cooper and his company,
4th Dimension Innovations, Inc., seeking declaratory judg-
ment that it was the sole owner of the D877 Patent and
that its principal, Shlaferman, was the sole inventor. Pl.’s
Compl., Dynamite Marketing, Inc. v. 4th Dimension Inno-
vations, Inc., Case No. 6:21-cv-1554-GAP-EJK (M.D. Fla.
Sept. 21, 2021) (Dkt. No. 1). On November 22, 2021,
Cooper counterclaimed for correction of inventorship under
35 U.S.C. § 256, alleging that his participation in the de-
velopment of the Wallet Ninja made him the sole owner
and inventor, or at least a co-owner and co-inventor, of the
D877 Patent. Def.’s Answer and Countercls., Dynamite
Marketing, Inc. v. 4th Dimension Innovations, Inc., Case
No. 6:21-cv-1554-GAP-EJK (M.D. Fla. Nov. 22, 2021)
(Dkt. No. 13).
One week later, on November 29, Cooper signed a nunc
pro tunc agreement assigning Sherman “all rights, title,
and interest, if any, that Cooper may have in the [D]877
Patent,” retroactively effective to February 26, 2014.
J.A. 5731. As part of the assignment, Cooper agreed to
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DYNAMITE MARKETING, INC. v. THE WOWLINE, INC. 7
participate to any extent necessary in the New York action.
J.A. 5732–33. In exchange, Sherman agreed to cover all
costs and expense of the Florida action, as well as any costs
incurred in Cooper’s participation in the New York action.
J.A. 5731–33.
III
On Dynamite’s motion, the Florida case was trans-
ferred to the District Court on February 16, 2022 and on
April 22, the cases were consolidated retaining the origi-
nally scheduled jury trial. Cooper participated in the New
York action independent of Sherman, represented by dif-
ferent counsel and submitting independent filings. Just
over a year later, all parties submitted a joint request to
bifurcate the trial, asking the court to address the issues of
inventorship and ownership in a bench trial, and infringe-
ment, invalidity, and damages in a jury trial. After numer-
ous substantive exchanges, the parties and the District
Court failed to reach a consensus on the arrangement and
scheduling of separate trials. The District Court decided
that reasonable management of the court’s docket required
the inventorship related issues to be tried in front of the
same jury as the infringement related issues. However, the
District Court arranged for the trial to proceed in two dis-
tinct phases: phase one addressing inventorship and own-
ership; phase two addressing infringement, invalidity, and
damages.
Inventorship and ownership were tried first, due to
their potentially dispositive nature. Cooper appeared at
the inventorship trial, maintaining as counterclaim-plain-
tiff that he was at least the co-inventor and co-owner of the
D877 Patent. In phase one, the jury found Cooper failed to
prove by clear and convincing evidence that he made a sig-
nificant contribution to the D877 Patent, and thus failed to
prove his status of at least co-inventor and co-owner of the
patent.
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DYNAMITE MARKETING, INC. v. THE WOWLINE, INC. 8
In phase two, the jury upheld the validity of the D877
Patent, found that Sherman willfully infringed the patent,
and awarded Dynamite lost profit damages totaling
$1,850,000. Sherman submitted post-verdict motions on
inventorship, invalidity, non-infringement, and damages,
which the District Court denied. Dynamite moved for at-
torney’s fees and costs, which the District Court granted in
the amount of $1,536,644.27, and $148,673.06 prejudg-
ment interest, for a total award of $3,535,317.33. Sherman
appeals, but Cooper, who lost his claim as to co-inventor-
ship and co-ownership, does not appeal.
STANDARDS OF REVIEW
Procedural rulings not unique to patent law are re-
viewed under the law of the regional circuit. Micro Chem.,
Inc. v. Lextron, Inc., 317 F.3d 1387, 1390–91 (Fed. Cir.
2003). Grants and denials of motions for judgment as a
matter of law are procedural and thus reviewed under re-
gional circuit law. Wordtech Sys., Inc. v. Integrated Net-
works Sols., Inc., 609 F.3d 1308, 1312 (Fed. Cir. 2010). The
Second Circuit reviews rulings on the grant or denial of
post-verdict motions for judgment as a matter of law de
novo and rulings on the grant or denial of new trial and
remittitur for abuse of discretion. MacDermid Printing
Sols. LLC v. Cortron Corp., 833 F.3d 172, 180, 190 (2d Cir.
2016). Daubert rulings are reviewed in the Second Circuit
for abuse of discretion. Amorgianos v. Nat’l R.R. Passenger
Corp., 303 F.3d 256, 264 (2d Cir. 2002) (citing Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 152 (1999)).
We review a jury’s damages award for substantial evi-
dence. Riles v. Shell Expl. & Prod. Co., 298 F.3d 1302, 1308
(Fed. Cir. 2002). We review a district court’s grant of at-
torney’s fees for abuse of discretion. In re Rembrandt
Techs. LP Pat. Litig., 899 F.3d 1254, 1278 (Fed. Cir. 2018).
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DYNAMITE MARKETING, INC. v. THE WOWLINE, INC. 9
DISCUSSION
This appeal presents several issues for review. We ad-
dress (1) whether Sherman has the right to appeal Cooper’s
counterclaim for inventorship in Cooper’s absence, and if
so, whether the District Court erred in its determinations
on the inventorship issue; (2) whether the District Court
properly denied Sherman’s post-verdict motion upholding
the jury’s determination that the D877 Patent was not in-
valid under 35 U.S.C. § 103 for obviousness or invalid for
functionality; (3) whether the District Court properly de-
nied Sherman’s post-verdict motion upholding the jury’s
determination that Sherman willfully infringed the D877
Patent; (4) whether the District Court properly denied
Sherman’s post-verdict motion for remittitur or new trial
on damages upholding the jury’s damages award; and
(5) whether the District Court properly awarded Dynamite
attorney’s fees. We take each issue in turn.
Inventorship
Sherman argues that Cooper’s § 256 claim for correc-
tion of inventorship was improperly given to the jury, that
it was wrongly decided by the jury, and that the District
Court wrongly denied Sherman’s post-verdict motion on
the issue. Sherman’s argument derives from the observa-
tion in Shum v. Intel Corporation, 499 F.3d 1272, 1277
(Fed. Cir. 2007) that “an action for correction of inventor-
ship under § 256, standing alone, is an equitable claim to
which no right to a jury trial attaches.” Dynamite counters
that we lack jurisdiction over the correction of inventorship
claim because Sherman was not a party to the correction of
inventorship claim before the district court and Cooper, the
losing counterclaim-plaintiff on the correction of inventor-
ship claim, has not appealed. Despite Cooper’s absence,
Sherman argues that “[a]s the assignee of Cooper’s owner-
ship rights in the patent throughout the trial and this ap-
peal,” it can appeal the district court’s judgment on the
correction of inventorship claim. Appellant’s Reply Br. 5.
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DYNAMITE MARKETING, INC. v. THE WOWLINE, INC. 10
The general rule is that “only parties to a lawsuit, or
those that properly become parties, may appeal an adverse
judgment.” Marino v. Ortiz, 484 U.S. 301, 304 (1988). The
Supreme Court has recognized, however, that there are
some circumstances where a nonparty “should be consid-
ered a ‘party’ for the purposes of appealing.” Devlin v.
Scardelletti, 536 U.S. 1, 7 (2002). In assessing whether a
nonparty has the right to appeal, courts have considered
several factors regarding the nonparty’s role in the case be-
low and the paths available for appellate review. See, e.g.,
Home Prods. Int’l, Inc. v. United States, 846 F. App’x 890,
894 (Fed. Cir. 2021) (“Those factors are: (1) whether the
nonparty participated in the proceedings below;
(2) whether the nonparty has a personal stake in the out-
come; (3) whether the equities favor hearing the appeal;
and (4) whether the nonparty has an alternative path to
appellate review of the decision.”); Kimberly ReGenesis,
LLC v. Lee County, 64 F.4th 1253, 1261–1262 (11th Cir.
2023) (collecting cases); Sanchez v. R.G.L., 761 F.3d 495,
502 (5th Cir. 2014).
We conclude that Sherman’s appeal as to the correction
of inventorship claim should be dismissed. Regardless of
Sherman’s claimed ownership rights in the patent and its
stake in the outcome, Sherman has presented no reason for
why it failed to move for intervention or substitution in this
case. A grant of one of these motions would have made
Sherman a party to the litigation involving the correction
of inventorship claim and given it the right to appeal. See
Marino, 484 U.S. at 304 (“[T]he better practice is for . . . a
nonparty to seek intervention for purposes of appeal; deni-
als of such motions are, of course, appealable.”). Further-
more, despite having control over Cooper’s litigation
actions, J.A. 5731, Sherman did not instruct him to appeal.
Cooper and Sherman also had different attorneys, por-
trayed themselves and acted like separate parties during
the district court litigation, and only Cooper actively par-
ticipated in litigating the inventorship issue. See, e.g.,
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DYNAMITE MARKETING, INC. v. THE WOWLINE, INC. 11
J.A. 520–21; J.A. 574; J.A. 1556–58; J.A. 3535–46;
J.A. 3622–34. Taking these considerations together, we
conclude that Sherman does not have the right to appeal
the correction of inventorship claim. Accordingly, we dis-
miss Sherman’s appeal with respect to the correction of in-
ventorship claim, and we do not reach the other arguments
Sherman has raised regarding this claim.
Invalidity for Obviousness
Sherman’s challenge to the D877 Patent as obvious
was decided by the jury and reviewed by the District Court
on Sherman’s post-verdict motion under the legal test set
forth long ago in In re Rosen, 673 F.2d 388 (CCPA 1982)
and Durling v. Spectrum Furniture Co., Inc., 101 F.3d 100
(Fed. Cir. 1996). The Rosen/Durling test was under en
banc review by this court in LKQ Corp. v. GM Global Tech-
nology Operations LLC, 102 F.4th 1280 (Fed. Cir. 2024) at
the time Sherman filed its opening appeal brief in this case.
Shortly before Dynamite filed its reply brief, in LKQ this
court rejected the Rosen/Durling test as unduly rigid and
not aligned with the obviousness tests set forth in Graham
v. John Deere Co. of Kansas City, 383 U.S. 1 (1966) and
KSR International Co. v. Teleflex Inc., 550 U.S. 398 (2007).
LKQ, 102 F.4th at 1293. But under both the former
Rosen/Durling test and the applicable LKQ test, an obvi-
ousness challenge at least must (a) put in evidence a prior
art primary reference, and (b) show by clear and convincing
record-supported reasons that an ordinary designer in the
field without hindsight would have been motivated to mod-
ify the primary reference in evidence by combining specific
features from specific pieces of additional prior art to create
the same overall visual appearance as the claimed design.
See Rosen, 673 F.2d at 391 (primary reference prong); Durl-
ing, 101 F.3d at 103 (motivation to combine prong); LKQ,
102 F.4th at 1298–99 (primary reference and motivation to
combine prongs).
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DYNAMITE MARKETING, INC. v. THE WOWLINE, INC. 12
Sherman argues that the jury’s verdict and the District
Court’s denial of its obviousness post-verdict motion cannot
stand in light of the LKQ decision, and that we must re-
mand the case for reconsideration of the obviousness issue
under the LKQ test. Dynamite argues in response that a
remand is unnecessary because no reasonable juror could
find obviousness by clear and convincing proof under either
Rosen/Durling or LKQ, for two reasons.
First, Dynamite notes that the District Court restricted
the jury’s obviousness considerations to prior art “received
into evidence.” J.A. 5291. Dr. Formosa, Sherman’s obvi-
ousness expert, pointed to the ’230 design patent as “prob-
ably” the primary reference in the case. See J.A. 5185.
Dynamite asserts that although Dr. Formosa’s testimony
tentatively identified a primary reference, Sherman actu-
ally failed to introduce the ’230 design patent as evidence.
Appellee’s Br. at 36. Absent a prior art primary reference
in evidence before the jury, Dynamite argues that an obvi-
ousness challenge under either Rosen/Durling or LKQ
must fail. In reply, Sherman does not deny that it failed to
introduce the prior art its expert probably thought would
suffice as a primary reference, arguing instead that “obvi-
ousness is not an issue that should require admission of the
prior art.” Appellant’s Reply Br. at 1 n.2. Further, in re-
sponse to this court’s request at oral argument for the par-
ties to identify in post-argument submissions all prior art
submitted as evidence at trial, Sherman did not identify
any point in the record showing that the ’230 design patent
was actually introduced into evidence. See generally Ap-
pellant’s Letter Br., Dynamite Marketing, Inc. v. The Wow-
Line, Inc., 2024-1523, 2024-1525 (Fed. Cir. July 21, 2025)
(Dkt. No. 45). We therefore agree with Dynamite that
Sherman’s failure to place in evidence a prior art primary
reference defeats its obviousness challenge under either
Rosen/Durling or LKQ and note the District Court’s state-
ment that “I don’t think the record clearly supports the ex-
istence of a primary reference.” Trial Tr. at 891, Dynamite
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DYNAMITE MARKETING, INC. v. THE WOWLINE, INC. 13
Marketing, Inc. v. The WowLine, Inc., Case No. 2:19-cv-
3067 (GRB)(LGD) (E.D.N.Y. Sept. 14, 2023) (Dkt. No. 155).
Even if Sherman had put a prior art primary reference
in evidence, its obviousness challenge must fail for a second
reason. Dynamite correctly points out that Dr. Formosa’s
general hindsight-based conclusion of obviousness failed to
provide clear and convincing record-supported reasons that
an ordinary designer would have been motivated to com-
bine specific design features from identified prior art refer-
ences to produce the overall appearance of the D877
Patent. Appellee’s Br. at 35–37. We thus reject Sherman’s
request for a remand to reconsider obviousness under the
LKQ test and affirm the District Court’s denial of Sher-
man’s post-verdict motion on obviousness.
Invalidity for Functionality
A design patent is invalid for functionality if the
claimed design is dictated by the utilitarian purpose of the
article. “[T]he ultimate question is not the functional or
decorative aspect of each separate feature, but [instead]
the overall appearance of the article, in determining
whether the claimed design is dictated by the utilitarian
purpose of the article.” L.A. Gear, Inc. v. Thom McAn Shoe
Co., 988 F.2d. 1117, 1123 (Fed. Cir. 1993). “[E]lements of
[a] design may indeed serve a utilitarian purpose,” but or-
namentality is more likely the root of the design “[w]hen
there are several ways to achieve the function.” Id.
The jury heard the testimonies of Dr. Formosa, Shla-
ferman, and Cooper, and observed the arrangement of the
D877 Patent’s features in other wallet-compatible multi-
tools on the market. The jury was able to observe the im-
pact of different arrangements on the overall design of the
products and compare them to the overall design of the
D877 Patent. The D877 Patent, Sherman’s 2018 and 2019
product catalogs showing the Original and Redesigned
TOL4 product, and photos of the Wallet Ninja were all en-
tered into evidence. After weighing this evidence, showing
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DYNAMITE MARKETING, INC. v. THE WOWLINE, INC. 14
the arrangement and design of the elements of the D877
Patent as compared to other wallet-compatible multi-tools,
the jury determined that the D877 Patent was not invalid
for functionality. Substantial evidence supports the jury’s
verdict that the D877 Patent is not invalid for functional-
ity. The District Court’s denial of Sherman’s post-verdict
motion on functionality is beyond challenge.
Infringement
The jury heard testimony from Dynamite’s infringe-
ment expert, Dr. Rake, who identified and compared “con-
spicuous aspects” of the D877 Patent and the Redesigned
TOL4 product and determined that the overall designs
were “substantially the same.” J.A. 4849–54. The jury
also heard Sherman’s infringement expert, Dr. Formosa,
describe the Original and Redesigned TOL4 products as
“pretty identical” when asked about the differences be-
tween the two. J.A. 5202. Additionally, the jury heard
testimony from Sherman’s executive, Robert Davila, ad-
mitting on cross-examination to the Original TOL4’s in-
fringement and that, even after being made aware that
the Original TOL4 infringed, Sherman continued to sell
this product until it had no remaining inventory.
Mr. Davila also admitted on cross-examination to email-
ing pictures of the Wallet Ninja to three independent ven-
dors, requesting them to source the product.
Non-testimonial evidence of infringement also existed
in the record, including photographs of Sherman’s Original
and Redesigned TOL4 line of products, the D877 Patent,
and photos of the Wallet Ninja. The jury was permitted to
consider and assign the weight it deemed appropriate to
each of these pieces of evidence in deciding the issue of in-
fringement. In light of the substantial evidence in support
of the jury’s verdict, we affirm the District Court’s denial of
Sherman’s post-verdict motion on infringement.
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DYNAMITE MARKETING, INC. v. THE WOWLINE, INC. 15
Damages
Dynamite sought damages on a lost profits theory un-
der 35 U.S.C. § 284, while Sherman argued that its profits
from infringement provided a more reliable measure of Dy-
namite’s damages. Dynamite presented its lost profits case
through its expert, Ms. Kimberly Schenk, relying on and
applying the test for lost profits set forth in Panduit Corp.
v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152 (6th Cir.
1978). Sherman’s challenge under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993) to Ms. Schenk’s
credentials and methodology was rejected by the District
Court during trial, and again in its denial of Sherman’s
post-verdict motion on damages. Sherman does not appeal
the adverse Daubert rulings, but instead mounts on appeal
various challenges to Ms. Schenk’s application of the rele-
vant Panduit factors to support Dynamite’s lost profits
case. As the District Court explained in its ruling on Sher-
man’s post-verdict motion, Ms. Schenk provided substan-
tial evidence on the relevant Panduit factors. As the
District Court properly noted, Sherman had its opportunity
to attack the weight of Ms. Schenk’s Panduit testimony,
and the fact that Sherman failed to convince the jury of any
material flaws in Ms. Schenk’s testimony does not provide
any basis for post-judgment relief, either by the District
Court or this court on appeal. Sherman has provided no
ground to disturb the damages award in this case.
Attorney’s Fees
We review the award of attorney’s fees for abuse of dis-
cretion. Rembrandt, 899 F.3d at 1278. Sherman claims
abuse of discretion in the award of attorney’s fees to Dyna-
mite because the District Court failed explicitly to classify
the case as exceptional and to describe specific misconduct
warranting exceptional case status. Sherman also claims
that the District Court’s award constituted punishment to
it, rather than compensation to Dynamite for its costs of
litigation.
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DYNAMITE MARKETING, INC. v. THE WOWLINE, INC. 16
We disagree with Sherman that the District Court’s
failure explicitly to identify the case as ‘exceptional’ or
point to particular acts of misconduct is reversible error
amounting to an abuse of discretion. “[A]n ‘exceptional’
case is simply one that stands out from others with respect
to . . . the unreasonable manner in which the case was liti-
gated.” Rembrandt, 899 F.3d at 1277 (quoting Octane Fit-
ness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545,
554 (2014)) (alterations in original). An overt use of the
word exceptional is not required. Instead, our court has
recognized that when a party’s “misconduct so severely af-
fect[s] every stage of the litigation . . . a full award of attor-
ney fees [is] proper.” Monolithic Power Sys., Inc. v. O2
Micro Int’l Ltd., 726 F.3d 1359, 1369 (Fed. Cir. 2013).
The District Court held that Sherman’s “approach to
this case” was “highly unreasonable,” and had adversely
affected the proceedings. J.A. 17. The District Court found
Sherman’s conduct at times “reckless,” “utterly indefensi-
ble,” “unacceptable,” “bord[ering] on frivolity,” and “unrea-
sonable,” J.A. 16–17, commenting even at an early stage in
the proceedings that “further gamesmanship . . . will result
in sanctions.” J.A. 55. Sherman has shown no abuse in the
District Court’s exercise of its discretion to award attor-
ney’s fees to Dynamite.
As for Sherman’s complaint that the District Court
handed out attorney’s fees as punishment instead of as
compensation, we disagree. The District Court clearly
stated that it “award[ed] the amounts sought as re-
quested . . . [to] compensate plaintiff for the costs of this
protracted litigation.” J.A. 18. Nothing supports Sher-
man’s argument that the award was punitive in nature.
Therefore, we affirm the award of attorney’s fees to Dyna-
mite.
CONCLUSION
For the reasons stated above, we dismiss Sherman’s
appeal with respect to the correction of inventorship claim.
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DYNAMITE MARKETING, INC. v. THE WOWLINE, INC. 17
We affirm the District Court’s denial of Sherman’s post-
verdict motions on invalidity and non-infringement. We
affirm the jury’s award for damages and the District
Court’s grant of Dynamite’s attorney’s fees, in the total
amount of $3,535,317.33.
DISMISSED-IN-PART AND AFFIRMED-IN-PART
COSTS
No costs.
Case: 24-1523 Document: 47 Page: 17 Filed: 09/12/2025

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