Atlas Ip, LLC, Aflorida Corporation v. Commonwealth Edison Co., An Illinois Corporation

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ATLAS IP, LLC, A FLORIDA CORPORATION,
Plaintiff-Appellant
v.
COMMONWEALTH EDISON CO., AN ILLINOIS
CORPORATION,
Defendant-Appellee
______________________
2016-2203
______________________
Appeal from the United States District Court for the
Northern District of Illinois in No. 1:15-cv-10746, Senior
Judge Milton I. Shadur.
______________________
Decided: May 9, 2017
______________________
M ATTHEW TOPIC, Loevy & Loevy, Chicago, IL, argued
for plaintiff-appellant.
M ARK A. L EMLEY, Durie Tangri LLP, San Francisco,
CA, argued for defendant-appellee. Also represented by
ADAM R. B RAUSA , D ARALYN JEANNINE D URIE.
______________________
Before O’M ALLEY and H UGHES , Circuit Judges.

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ATLAS IP, LLC v. COMMONWEALTH EDISON CO . 2
O’M ALLEY, Circuit Judge.
Atlas IP, LLC (“Atlas”) filed suit in the United States
District Court for the Northern District of Illinois alleging
that Exelon Corporation (“Exelon”) and Commonwealth
Edison Company (“ComEd”) infringed U.S. Patent No.
5,371,734. The district court dismissed the complaint as
to Exelon with prejudice. Atlas subsequently amended
the complaint twice as to ComEd. ComEd moved to
dismiss the second amended complaint for failure to state
a claim upon which relief can be granted. The district
court granted that motion, and entered final judgment
dismissing the action with prejudice the same day.
After the district court entered judgment dismissing
the case, ComEd moved the court for attorneys’ fees and
costs pursuant to 35 U.S.C. § 285. While that motion was
pending, Atlas appealed the district court’s judgment on
the merits to this court. Notice of Appeal, Atlas IP, LLC
v. Exelon Corp., No. 15-cv-10746 (N.D. Ill. June 9, 2016),
ECF No. 42. The district court later granted ComEd’s
motion for attorneys’ fees, and the parties subsequently
stipulated to the amount of fees and costs. Atlas did not
file a notice of appeal from the district court’s decision
granting fees or from the court’s apparent approval of the
parties’ stipulation.
After careful consideration and with the benefit of
oral argument, we affirm the district court’s judgment
dismissing the action with prejudice. Having resolved the
merits, we turn to a procedural complication. As noted,
after dismissing the suit, the district court ordered Atlas
to pay ComEd’s attorneys’ fees and costs. Both parties
discussed the propriety of the district court’s fee award in
their briefing on appeal. After oral argument, we ordered
the parties to submit supplemental letter briefs address-
ing whether we have jurisdiction to review the district
court’s decision awarding attorneys’ fees and costs under
35 U.S.C. § 285. Atlas argued that, because the issue of

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ATLAS IP, LLC v. COMMONWEALTH EDISON CO . 3
claim construction is inextricably intertwined with the
award of attorneys’ fees, and because ComEd had notice
of its intent to appeal the award of fees, we should exer-
cise pendent appellate jurisdiction over the attorneys’ fees
issue. ComEd disagreed, arguing that Atlas did not
satisfy the jurisdictional requirement for its appeal from
the district court’s fees award.
Review of the district court’s docket reveals that the
court never entered final judgment specifying the amount
of fees awarded. Instead, the parties submitted a stipula-
tion as to the amount of fees and the district court merely
acknowledged that docket entry. Because there was
neither a final order awarding fees nor a notice of appeal
from any such order, we lack jurisdiction to address the
propriety of the court’s decision awarding fees. See
Bowles v. Russell, 551 U.S. 205, 214 (2007) (“[T]he timely
filing of a notice of appeal in a civil case is a jurisdictional
requirement.”).
Although Atlas requests that we exercise pendent ap-
pellate jurisdiction over the issue of attorneys’ fees, we
decline to do so. The doctrine of pendent jurisdiction may
apply “when the appealable and non-appealable decisions
are ‘inextricably intertwined’ or when review of the non-
appealable decision is necessary to review the appealable
one.” Orenshteyn v. Citrix Sys., Inc., 691 F.3d 1356, 1358
(Fed. Cir. 2012). These circumstances are not present
here. Our review of the merits is not impacted by the
existence of any later fee award. As we have previously
explained, a “district court’s exceptional case determina-
tion is a separately appealable judgment which itself
must be final.” Falana v. Kent State Univ., 669 F.3d
1349, 1360 (Fed. Cir. 2012).
Accordingly, we affirm the district court’s decision
dismissing Atlas’s second amended complaint, but decline
to address the portion of Atlas’s briefing relating to attor-
neys’ fees.

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ATLAS IP, LLC v. COMMONWEALTH EDISON CO . 4
AFFIRMED

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