Robert Mankes v. Vivid Seats Ltd., Fandango, LLC

United States Court of Appeals
for the Federal Circuit
______________________
ROBERT MANKES,
Plaintiff-Appellant
v.
VIVID SEATS LTD., FANDANGO, LLC,
Defendants-Appellees
______________________
2015-1500, 2015-1501
______________________
Appeals from the United States District Court for the
Eastern District of North Carolina in Nos. 5:13-cv-00717-
FL, 5:13-cv-00716-FL, Judge Louise Wood Flanagan.
-------------------------------------------------------------------------
ROBERT MANKES,
Plaintiff-Appellee
v.
VIVID SEATS LTD.,
Defendant-Appellant
______________________
2015-1909
______________________

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MANKES v. VIVID SEATS LTD. 2
Appeal from the United States District Court for the
Eastern District of North Carolina in No. 5:13-cv-00717-
FL, Judge Louise Wood Flanagan.
______________________
Decided: April 22, 2016
______________________
ANTHONY J. BILLER, Coats & Bennett, PLLC, Cary,
NC, argued for plaintiff-appellant and plaintiff-appellee
Robert Mankes. Also represented by D AVID E. BENNETT .
RICHARD T HOMAS MATTHEWS , Williams Mullen, PC,
Raleigh, NC, argued for defendant-appellee and defend-
ant-appellant Vivid Seats Ltd. Also represented by
ANDREW R OBERT SHORES ; J OSEPH RAY P OPE, Richmond,
VA.
SHARON D AVIS , Rothwell, Figg, Ernst & Manbeck,
P.C., Washington, DC, argued for defendant-appellee
Fandango, LLC. Also represented by S TEVEN M.
L IEBERMAN.
K EVIN J. CULLIGAN, Goodwin Procter LLP, New York,
NY, for amicus curiae Askeladden, L.L.C. Also represent-
ed by J OHN P. H ANISH ; BRIAN T IMOTHY B URGESS , Wash-
ington, DC.
______________________
Before T ARANTO, SCHALL , and CHEN, Circuit Judges.
T ARANTO, Circuit Judge.
Robert Mankes owns U.S. Patent No. 6,477,503,
which describes and claims methods for managing a
reservation system that divides inventory between a local
server and a remote Internet server. In October 2013, Mr.
Mankes sued Vivid Seats Ltd. and Fandango, LLC in the
Eastern District of North Carolina, alleging that their

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MANKES v. VIVID SEATS LTD. 3
operation of Internet-based reservation systems, in con-
junction with the operation of local reservation systems by
movie theaters and other entertainment venues, infringes
the ’503 patent. Because it is undisputed that no one
person performs all of the steps of the method claims, Mr.
Mankes’s case depends on establishing what has been
called “divided infringement.”
When Mr. Mankes filed his complaints, the law relat-
ing to divided infringement was in the midst of a multi-
year process of active judicial reconsideration, including
by this court sitting en banc and by the Supreme Court.
This court had granted en banc review to address the
standards for direct-infringement liability for divided
infringement but, in its decision, had left existing direct-
infringement standards in place without reconsidering
them, while providing an independent inducement basis
for divided-infringement liability. Akamai Techs., Inc. v.
Limelight Networks, Inc., 692 F.3d 1301 (Fed. Cir. 2012)
(en banc) (Akamai II). By mid-2014, however, the Su-
preme Court had reversed Akamai II, held that divided-
infringement liability of the sort at issue here requires
some person to be liable for direct infringement under 35
U.S.C. § 271(a), and remanded for possible reconsidera-
tion of direct-infringement standards by this court.
Limelight Networks, Inc. v. Akamai Techs., Inc., 134 S. Ct.
2111, 2120 (2014) (Limelight).
In early 2015, the district court in the present cases,
applying the law on direct-infringement liability as it
then stood, concluded that Mr. Mankes’s allegations are
insufficient to establish direct infringement under
§ 271(a), and on that basis the court granted judgments
on the pleadings for Vivid Seats and Fandango. When
Vivid Seats thereafter sought attorney’s fees against Mr.
Mankes under 35 U.S.C. § 285, the court denied the
request, finding the case not to be exceptional, a prerequi-
site to a fee award under § 285. Mr. Mankes has appealed

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MANKES v. VIVID SEATS LTD. 4
the merits judgments against him, and Vivid Seats has
appealed the denial of fees.
During the briefing on the merits appeal here, the le-
gal standards applied by the district court were first
reinforced, then revised, by further decisions of this court
in the Akamai-Limelight case. In Akamai Technologies,
Inc. v. Limelight Networks, Inc., 786 F.3d 899 (Fed. Cir.
2015) (Akamai III), a panel of this court, on remand from
the Supreme Court, rejected direct-infringement liability
for Limelight—as had the initial panel in the case in
2010, Akamai Techs., Inc. v. Limelight Networks, Inc., 629
F.3d 1311, 1318–22 (Fed. Cir. 2010) (Akamai I), and the
en banc court in 2012, Akamai II, 692 F.3d at 1307, 1318–
19. The Akamai III panel reasoned that Limelight did not
direct or control its customers’ performance of claim steps,
that its customers were not agents for Limelight, and that
Limelight and its customers did not together constitute a
joint enterprise (whose members can be charged with
each other’s acts in the enterprise). 786 F.3d at 914–15.
Three months later, however, the en banc court vacat-
ed Akamai III and decided Akamai Technologies, Inc. v.
Limelight Networks, Inc., 797 F.3d 1020 (Fed. Cir. 2015)
(en banc) (Akamai IV), cert. denied, 2016 WL 442440 (U.S.
Apr. 18, 2016). The en banc court changed the result in
the Akamai-Limelight case, now ruling against Limelight
and for Akamai. Id. at 1025. The court did so by broad-
ening the circumstances in which others’ acts may be
attributed to an accused infringer to support direct-
infringement liability for divided infringement, relaxing
the tighter constraints on such attribution reflected in our
earlier precedents and in the three previous rulings for
Limelight on direct infringement. See Aristocrat Techs.
Austl. Pty Ltd. v. Int’l Game Tech., 709 F.3d 1348, 1362–
63 (Fed. Cir. 2013); Muniauction, Inc. v. Thomson Corp.,
532 F.3d 1318, 1329–30 (Fed. Cir. 2008); BMC Res., Inc. v.
Paymentech, L.P., 498 F.3d 1373, 1380–82 (Fed. Cir.
2007). The en banc court concluded that attribution is

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MANKES v. VIVID SEATS LTD. 5
proper in a joint-enterprise setting, and it also articulated
a standard that permits liability “when an alleged in-
fringer conditions participation in an activity or receipt of
a benefit upon performance of a step or steps of a patent-
ed method and establishes the manner or timing of that
performance.” Akamai IV, 797 F.3d at 1023. The court
added: “In the future, other factual scenarios may arise
which warrant attributing others’ performance of method
steps to a single actor. Going forward, principles of at-
tribution are to be considered in the context of the partic-
ular facts presented.” Id. And the court stated: “To the
extent our prior cases formed the predicate for [Akamai
III], those decisions are also overruled.” Id. at 1023 n.3.
We need not say how much broadening occurred in
Akamai IV. In the present cases, the district court’s
rulings and the arguments of Fandango and Vivid Seats
to the district court were squarely based on the earlier,
narrower standard. We vacate the judgments on the
pleadings against Mr. Mankes and remand for further
proceedings in light of Akamai IV.
We affirm the denial of attorney’s fees to Vivid Seats.
Not only is Vivid Seats no longer a prevailing party (given
our vacatur of the judgment in its favor), but we readily
conclude that the district court did not abuse its discre-
tion in deeming the case not to be exceptional even under
the state of the law before Akamai IV. Mr. Mankes rested
his case on reasonable arguments for adjustment of legal
standards that this court had already granted en banc
review to consider in Akamai II and that remained in
play, as indicated by Akamai II’s postponing reconsidera-
tion of those standards, by Limelight’s remand, and,
ultimately, by Akamai IV’s adoption of broadened stand-
ards. In these circumstances, the district court did not err
in refusing to deem unreasonable Mr. Mankes’s pursuit of
this case to date.

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MANKES v. VIVID SEATS LTD. 6
BACKGROUND
The ’503 patent, entitled “Active Reservation System,”
recognizes that, to serve a national market, vendors have
begun selling their goods and services both through the
Internet and at their physical locations. ’503 patent, col.
1, lines 31–37.1 To do so, the patent says, vendors have
typically divided their inventory, allocating a portion to
the physical site and ceding control of the remaining
inventory to the remote Internet site. Id., col. 1, lines 38–
47. But when the inventory is split, “neither [site] ha[s]
contemporaneous information on the overall state of the
local inventory,” which may result in underselling when
one site has exhausted its allocation but the other still
has available inventory, or may require the vendor to
undertake the costly task of reallocating its inventory
between the sites. Id., col. 1, lines 43–67.
The specification describes means of controlling the
entire inventory from a local site. The local site main-
tains the total inventory of available goods and services
and designates pricing. Id., col. 3, lines 24–27. It com-
municates what portion of the inventory is available to an
Internet server, which makes that inventory accessible for
purchase by consumers online. Id., col. 3, lines 27–32.
When a sale is requested over the Internet, the Internet
site contacts the local site, which confirms the sale and
updates the total inventory. Id., col. 3, lines 32–38. The
adjusted inventory is then transmitted to the Internet
site, along with a confirmation of the sale, which is for-
warded to the consumer. Id., col. 3, lines 38–42. In this
way, any time a sale is made, whether at the local or
Internet site, the local site can keep an up-to-date account
1 The patent also refers to telephone reservation
systems, but the claims all involve the Internet, and we
limit our discussion to Internet systems.

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MANKES v. VIVID SEATS LTD. 7
of its total inventory and communicate that information
to both sites. Id., col. 3, lines 16–19.
Claim 1 is illustrative, stating:
1. A method for operating an Internet based
active reservation system for the purchase of
goods and services, comprising:
(a) providing an owner event server located at
and operated by a local event owner having
an available inventory of goods and services
at a local site;
(b) providing an active reservation server locat-
ed at and operated by user remote from said
local site, said active reservation server ac-
cepting only data from said owner event serv-
er and formatting said data for viewing by an
Internet-based consumer;
(c) allocating said available inventory by only
said owner event server at all times between
local inventory and Internet inventory;
(d) adjusting said available inventory by only
said event owner at said owner event server
at all times based on purchases of goods and
services at said local event site;
(e) communicating said allocated Internet in-
ventory only to said active reservation server;
(f) receiving purchase requests for goods and
services in said Internet inventory at said ac-
tive reservation server from said Internet-
based consumer;
(g) communicating said purchase requests from
said active reservation server to said owner
event server;

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MANKES v. VIVID SEATS LTD. 8
(h) accepting said purchase requests solely at
said local event server and adjusting said In-
ternet inventory only by said owner event
server at all times to establish an adjusted In-
ternet inventory;
(i) communicating said accepting and said ad-
justed Internet inventory from said owner
event server to said active reservation server;
and
(j) communicating said accepting and confirma-
tion indicia relative thereto from said active
reservation system to said Internet consumer.
Id., col. 8, lines 33–67.
In these cases, filed in October 2013, Mr. Mankes has
alleged that Vivid Seats and Fandango infringe the ’503
patent by operating Internet-based reservation systems
for reserving, buying, and selling tickets to movies, sport-
ing events, and concerts. He has admitted that Vivid
Seats and Fandango do not themselves perform every step
of the claims. He has urged a finding of divided infringe-
ment, however, on the asserted ground that local enter-
tainment venues perform the remaining steps.
When these suits began, divided-infringement law
was in flux, as reflected in the developments in the case
brought by Akamai against Limelight. In 2010, a panel of
this court had held that Limelight could not be held liable
for direct infringement, applying Muniauction and BMC.
Akamai I, 629 F.3d at 1318–22. But in 2011, this court
granted en banc review. Akamai Techs., Inc. v. Limelight
Networks, Inc., 419 F. App’x 989 (Fed. Cir. 2011). In the
2012 en banc decision, Akamai II, the court left the rejec-
tion of direct infringement in place without revisiting
existing standards, 692 F.3d at 1307, 1318–19, but held
that inducement under § 271(b) might be established even
if no person could be held liable for direct infringement,

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MANKES v. VIVID SEATS LTD. 9
id. at 1308–18. That was the state of the law in 2013
when Mr. Mankes brought these suits. See Aristrocrat,
709 F.3d at 1361–64. The Supreme Court, however, had
already invited the Solicitor General to express the views
of the United States on Limelight’s certiorari petition
seeking review of Akamai II. See Limelight Networks,
Inc. v. Akamai Techs., Inc., 133 S. Ct. 2879 (2013).
When the Supreme Court granted certiorari, Lime-
light Networks, Inc. v. Akamai Techs., Inc., 134 S. Ct. 895
(2014), the parties in the present cases, recognizing that
the Court might alter the legal landscape, asked the
district court for a stay of proceedings, and the court
obliged. Then, in June 2014, the Supreme Court decided
Limelight, eliminating the independent inducement
option and remanding with the observation that “the
Federal Circuit will have the opportunity to revisit the
§ 271(a) question if it so chooses.” Limelight, 134 S. Ct. at
2120. After that decision, the district court in the present
cases put off deciding whether to lift the stays until this
court, on remand from the Supreme Court in the Akamai-
Limelight case, decided whether once again to hear the
matter en banc (a process necessary to change pre-
existing direct-infringement law) or to refer the matter
back to a panel. Once this court chose the panel-decision
route, the district court in the present cases lifted the
stays and allowed Vivid Seats and Fandango to file sub-
stantive motions on infringement.
Vivid Seats and Fandango moved for judgment on the
pleadings, arguing that they could not be liable for direct
infringement because, based on the prevailing standard,
Mr. Mankes had not alleged enough to attribute the ticket
sellers’ actions to them. In his responses, Mr. Mankes
noted the various changes in the state of the law, and he
continued to argue for changing the law on divided in-
fringement. In February 2015, in two materially similar
opinions, the district court granted the defendants’ mo-
tions—addressing the merits of both direct infringement

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MANKES v. VIVID SEATS LTD. 10
and inducement. The court relied on the prevailing
divided-infringement law and found that Mr. Mankes had
not “allege[d] facts permitting the inference that defend-
ant[s] direct[ ] or control[ ] the theaters in their actions.”
15-1500 J.A. 8, 18. The court entered final judgment for
Vivid Seats and, after Fandango dismissed its counter-
claims without prejudice, entered final judgment for
Fandango.
After the district court granted judgment on the
pleadings, Vivid Seats filed a motion requesting attorney’s
fees under 35 U.S.C. § 285. On June 30, 2015, the district
court, considering all of the circumstances, found the case
not exceptional and therefore denied Vivid Seats’ motion.
Meanwhile, on May 13, 2015, before Mr. Mankes filed
his opening brief in his (consolidated) appeals from the
merits judgments, a panel of this court decided Akamai
III, applying a divided-infringement standard sufficiently
limiting that, as in Akamai I and Akamai II, the court
held Limelight to be entitled to judgment of no direct
infringement as a matter of law. Akamai III, 786 F.3d at
899–915. In August 2015, however, before briefing was
completed, the en banc court vacated that opinion, see
Akamai Techs., Inc. v. Limelight Networks, Inc., 612 F.
App’x 617 (Fed. Cir. 2015), and decided the case anew in
Akamai IV. In that decision, the court ruled against
Limelight, reversing the district court judgment in its
favor and holding it liable for direct infringement based
on the articulation of the broadened liability standards
quoted above. 797 F.3d at 1022–23. Those standards now
apply on this appeal. See Thorpe v. Hous. Auth. of City of
Durham, 393 U.S. 268, 282 (1969).
We have jurisdiction to review the merits and fees
judgments under 28 U.S.C. § 1295(a)(1).

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MANKES v. VIVID SEATS LTD. 11
D ISCUSSION
A
We review the district court’s judgments on the plead-
ings de novo. buySAFE, Inc. v. Google, Inc., 765 F.3d
1350, 1352 (Fed. Cir. 2014); Drager v. PLIVA USA, Inc.,
741 F.3d 470, 474 (4th Cir. 2014). The district court here
concluded that Mr. Mankes’s operative complaints
(amended complaints filed in February and March of
2014) do not plead facts sufficient to support liability for
divided infringement. But the district court reached that
conclusion based on legal standards that are now too
narrow in light of the intervening decision in Akamai IV,
which sufficiently broadened the standard governing
direct-infringement liability for divided infringement that
a three-time loss on the issue for Akamai (in Akamai I, II,
and III) turned into a win. We conclude that the district
court’s judgment in this case should be vacated and the
case remanded for further proceedings in light of the new
articulation of divided-infringement standards.
1
We first reject Vivid Seats’ argument (not joined by
Fandango) that Mr. Mankes waived a claim of direct
infringement. The district court did not find any such
waiver; it did not even discuss waiver. The court ad-
dressed direct infringement on the merits. We see no
error in its having done so.
A sufficient reason, reflected in the district court’s si-
lence about waiver, is that Vivid Seats did not expressly
argue waiver to the district court. In opposing Vivid
Seats’ motion for judgment on the pleadings in November
2014, after the June 2014 Limelight decision, Mr. Mankes
relied on direct infringement—despite having told Vivid
Seats by email in March 2014, before Limelight rejected
the independent inducement theory of Akamai II, that he
was not pressing direct infringement in his amended

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MANKES v. VIVID SEATS LTD. 12
complaint, 15-1500 J.A. 125–26. But Vivid Seats re-
sponded to Mr. Mankes’s shift in emphasis to direct
infringement only by stating that it was “surprising”;
Vivid Seats did not argue that Mr. Mankes must be held
to have waived a direct-infringement claim. Reply Br. in
Support of Def. Vivid Seats Ltd.’s Mot. for Judgment on
the Pleadings at 1, Mankes v. Vivid Seats Ltd., No. 5:13-
cv-00717 (E.D.N.C. Dec. 11, 2014), ECF No. 40. Without
a waiver argument having been directly made by Vivid
Seats, we cannot fault the district court for deciding the
merits of the direct-infringement contention rather than
considering it waived.
Vivid Seats’ waiver argument amounts to a new ar-
gument on appeal, but it makes no showing of the plain
error or miscarriage of justice required to justify reversal
based on a new argument. See Karpel v. Inova Health
Sys. Servs., 134 F.3d 1222, 1227 (4th Cir. 1998). Indeed,
it makes no persuasive showing of error at all. Mr.
Mankes’s February 2014 amended complaint is not by its
terms limited to indirect infringement, and Vivid Seats
cites no authority treating such a complaint as not en-
compassing direct infringement. (The amended complaint
against Fandango is similar, yet Fandango does not argue
that it excludes a direct-infringement contention.) Vivid
Seats points to the March 2014 email statement by Mr.
Mankes’s counsel, but it cites no authority requiring
treatment of that email as a forfeiture, at least when,
several months later, the Supreme Court in Limelight
altered the law by eliminating the independent induce-
ment principle of Akamai II. And Vivid Seats has identi-
fied no way in which it was prejudiced by the district
court’s considering direct infringement to be in the case,
especially in light of the liberal availability of the oppor-
tunity to amend pleadings so early in the case. See Laber
v. Harvey, 438 F.3d 404, 426–27 (4th Cir. 2006) (en banc).
In these circumstances, we find no basis for deeming Mr.

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MANKES v. VIVID SEATS LTD. 13
Mankes to have waived his direct-infringement contention
against Vivid Seats.
2
On the merits, we conclude that Mr. Mankes’s cases
warrant reinstatement and a remand for further proceed-
ings in light of the broadened divided-infringement
standard articulated by the en banc court in Akamai IV.
Mr. Mankes has alleged that each step of claim 1 is per-
formed by some entity. Some steps, i.e., (b), (e)–(g), (j),
involve operating an online system for selling tickets and
communicating sales to the inventory holder; Mr. Mankes
has alleged that Vivid Seats and Fandango perform those
steps. The remaining steps, i.e., (a), (c)–(d), (h)–(i), in-
volve maintaining an inventory of tickets and updating
the amounts in response to local and Internet sales; Mr.
Mankes has alleged that local venues perform those steps.
In the district court, there was no serious dispute that Mr.
Mankes has sufficiently alleged in each case that the
identified entities—the defendant Internet entity and the
associated local venues—together perform all steps and
deal with each other in making the reservation systems
work. The dispute was over whether Mr. Mankes has
alleged sufficient facts to justify attributing the local
venues’ actions to Vivid Seats and Fandango under the
then-governing standards for such attribution. And the
district court held, in agreement with Vivid Seats and
Fandango, that Mr. Mankes has not done so because he
has not alleged that the local venues either are the de-
fendants’ agents or are required by the defendants to take
the particular actions that constitute performance of steps
(a), (c)–(d), (h)–(i). 15-1500 J.A. 5–8, 15–18.
Although Mr. Mankes noted at oral argument that his
claim could not survive under the direct-infringement
standards pre-dating Akamai IV (as Akamai’s direct-
infringement claim did not survive under those stand-
ards), 15-1500 Oral Arg. at 1:16–2:02, those are no longer

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MANKES v. VIVID SEATS LTD. 14
the governing standards. Under Akamai IV, the district
court’s analysis is now insufficient to support rejection of
direct-infringement liability here. This court in Akamai
IV articulated circumstances warranting attribution not
previously enumerated in such terms, and it changed an
Akamai loss into a Limelight loss on direct infringement
on that basis. 797 F.3d at 1023 (“an alleged infringer
conditions participation in an activity or receipt of a
benefit upon performance of a step or steps of a patented
method and establishes the manner or timing of that
performance”). Akamai IV also is explicit that “other
factual scenarios may arise which warrant attributing
others’ performance of method steps to a single actor,” to
be assessed “in the context of the particular facts present-
ed.” Id. In at least those ways, Akamai IV makes clear
that it does not suffice to reject direct-infringement liabil-
ity here to conclude that local venues are not agents of the
defendants and are not required by the defendants to take
the claim steps that they perform.
When the governing legal standards have changed
during an appeal, it may be appropriate, in the exercise of
our authority under 28 U.S.C. § 2106, to vacate a deter-
mination made under superseded standards and to re-
mand for consideration under the new standards and for
any proceedings made necessary and appropriate by the
new standards. See, e.g., Patterson v. Alabama, 294 U.S.
600, 607 (1935) (“We may recognize [an intervening legal]
change, which may affect the result, by setting aside the
judgment and remanding the case so that the . . . court
may be free to act.”); Oplus Techs., Ltd. v. Vizio, Inc., 782
F.3d 1371, 1374–75 (Fed. Cir. 2015) (vacating and re-
manding attorney’s fees case in light of Supreme Court
decision changing the legal standard); Meadaa v. K.A.P.
Enters., L.L.C., 756 F.3d 875, 885 (5th Cir. 2014); GDG
Acquisitions, LLC v. Gov’t of Belize, 749 F.3d 1024, 1029
(11th Cir. 2014); McCravy v. Metro. Life Ins. Co., 690 F.3d

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MANKES v. VIVID SEATS LTD. 15
176, 180–82 (4th Cir. 2012). In the present case, such a
disposition is appropriate.
We do not ourselves rule on whether the allegations
Mr. Mankes has already made might be interpreted to
justify attribution under Akamai IV, or what additional
factual allegations might do so. Nor are we prepared to
find that the record here makes clear that the judgments
under review are correct under the newly articulated
standards regardless of what facts might now be forth-
coming with those standards in mind. Mr. Mankes has
already alleged that Vivid Seats and Fandango market
their reservation systems to local venues and offer them
financial incentives “to perform . . . the other steps of the
claimed invention by having the Sellers use the Vivid
Seats [and Fandango] reservation system[s],” 15-1500
J.A. 64 ¶¶ 21–22, 87 ¶¶ 18–19, and that local venues’
decisions to use the Vivid Seats or Fandango systems
initiate commercial arrangements involving continuing
communications about sales of tickets to permit the
sellers to update their inventories, 15-1500 J.A. 63 ¶ 14,
86 ¶ 14. For such an ongoing interactive commercial
relationship, it is plausible that Vivid Seats and Fandan-
go establish rules governing the needed coordination.
Given what he already has alleged, Mr. Mankes should
have the opportunity to allege facts that allow for a more
informed evaluation than is possible on the present
record, which was not developed with Akamai IV in mind,
of whether the defendants’ accused activities come within
the ambit of the Akamai IV “conditions participation”
standard or might otherwise justify finding direct-
infringement liability for divided infringement.
We do not think it appropriate to rule out at this stage
any particular theory of direct infringement, including the
joint-enterprise theory and the possibility of other bases
of attribution recognized in Akamai IV. Nor do we pre-
scribe the course of proceedings required on remand
beyond ruling that, given the early stage of this litigation,

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MANKES v. VIVID SEATS LTD. 16
Mr. Mankes must at least have the chance to amend his
complaints, if he believes such amendment might be
useful or the district court determines it is necessary,
based on this court’s new articulation of divided-
infringement standards. See Laber, 438 F.3d at 426.2
With that exception, we leave it to the district court in the
first instance to apply Akamai IV to the current com-
plaints, or to newly amended complaints, under the
standards that govern whether a complaint suffices to
allow litigation to continue past the stage of the opening
pleadings. We also note that it is up to the district court
to apply the usual standards for following any rulings
that alter the governing law while the case is on remand.
We vacate the district court’s judgments on the pleadings
and remand.
2 See also Ladapo v. Target Stores, Inc., 615 F.
App’x 842, 843 (5th Cir. 2015); Marrero v. City of Hialeah,
625 F.2d 499, 512 (5th Cir. 1980); Rogers v. White Metal
Rolling & Stamping Corp., 249 F.2d 262, 264 (2d Cir.
1957) (vacatur and amendment warranted when “the
controlling law has been altered or clarified during the
time the appeal has been pending”); 6 Charles Alan
Wright, Arthur R. Miller, Mary Kay Kane, Richard L.
Marcus & Adam M. Steinman, Federal Practice and
Procedure § 1473 (3d ed. 2015) (courts broadly permit
amendment to “enable a party to assert matters that were
overlooked or were unknown at the time the party inter-
posed the original complaint”); id. § 1474 (“Courts also
have allowed a party to amend in order to change the
nature or theory of the party’s claim . . . .”); cf. Hartis v.
Chicago Title Ins. Co., 694 F.3d 935, 948 (8th Cir. 2012)
(change in law may warrant amendment even after
scheduling-order deadline).

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MANKES v. VIVID SEATS LTD. 17
B
We affirm the denial of Vivid Seats’ motion for attor-
ney’s fees. We review for abuse of discretion the district
court’s determination that attorney’s fees were not war-
ranted under § 285 because the case is not exceptional.
Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 134 S.
Ct. 1744, 1749 (2014). Section 285 permits a court, in an
“exceptional” case, to “award reasonable attorney fees to
the prevailing party.” 35 U.S.C. § 285. Because we
vacate and remand judgment on the pleadings and no
other relief runs in Vivid Seats’ favor, Vivid Seats is no
longer the “prevailing party” under § 285. Inland Steel
Co. v. LTV Steel Co., 364 F.3d 1318, 1320 (Fed. Cir. 2004);
see Farrar v. Hobby, 506 U.S. 103, 111–12 (1992). Vivid
Seats agreed at oral argument. 15-1909 Oral Arg. at
1:14–1:45. At this point, § 285 does not authorize the
district court to award attorney’s fees to Vivid Seats.
In any event, independently of whether legal stand-
ards undergo further changes or whether Mr. Mankes
eventually loses, we think it clear and worth ruling that
the district court committed no error in rejecting an
exceptional-case contention even under the law before
Akamai IV. As the Supreme Court has explained, an
“exceptional” case is “one that stands out from others with
respect to the substantive strength of a party’s litigating
position (considering both the governing law and the facts
of the case) or the unreasonable manner in which the case
was litigated.” Octane Fitness, LLC v. ICON Health &
Fitness, Inc., 134 S. Ct. 1749, 1756 (2014). Here, the
district court could readily view Mr. Mankes as having
reasonably, openly, and in good faith pressed arguments
for plausibly result-altering changes in governing legal
standards that were demonstrably under active judicial
reconsideration in this court and the Supreme Court at
the time. While Mr. Mankes’s case was pending before
the district court, the law on divided infringement re-
mained uncertain, with both our court and the Supreme

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MANKES v. VIVID SEATS LTD. 18
Court weighing in on possible changes, and Mr. Mankes’s
litigation conduct appropriately reflected that shifting
legal landscape. Without addressing other situations, we
conclude that, in these circumstances, the district court
properly determined that this case, to date, has not been
exceptional in a way that would justify an award of fees
against Mr. Mankes.
CONCLUSION
For the foregoing reasons, we vacate the district
court’s judgments dismissing the cases and remand for
further proceedings, and we affirm the denial of Vivid
Seats’ motion for attorney’s fees.
No costs.
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED

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