       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                 ______________________

                BIAX CORPORATION,
                  Plaintiff-Appellant

                            v.

              NVIDIA CORPORATION,
              Defendant-Cross Appellant


 SONY COMPUTER ENTERTAINMENT AMERICA,
       INC. SONY ELECTRONICS, INC.,
          Defendants-Cross Appellants
             ______________________

            2013-1649, 2013-1653, 2013-1654
                ______________________

    Appeals from the United States District Court for the
District of Colorado in No. 09-CV-1257, Judge Philip A.
Brimmer.
                 ______________________

               Decided: February 24, 2015
                ______________________

    CHRISTIAN C. ONSAGER, Onsager Guyerson Fletcher
Johnson, Denver, Colorado, argued for plaintiff-appellant.
Also represented by ANDREW D. JOHNSON.
2                  BIAX CORPORATION   v. NVIDIA CORPORATION




    MARK S. DAVIES, Orrick, Herrington & Sutcliffe LLP,
Washington, DC, argued for defendant-cross appellant,
Nvidia Corporation. Also represented by CHRISTOPHER R.
OTTENWELLER, INDRA NEEL CHATTERJEE, Menlo Park, CA;
DONALD E. DAYBELL, CHRISTINA MARIE VON DER AHE,
Irvine, CA; ALEX V. CHACHKES, New York, NY; BRIAN
PHILIP GOLDMAN, San Francisco, CA.

   DAVID ROKACH, Kirkland & Ellis LLP, Chicago, IL,
argued for defendants-cross appellant, Sony Computer
Entertainment America, Inc., Sony Electronics Inc.

   PETER MCCREERY LANCASTER, Dorsey & Whitney
LLP, Minneapolis, Minnesota, argued for amicus curiae,
Dorsey & Whitney LLP.
               ______________________

    Before LOURIE, DYK, and TARANTO, Circuit Judges.
DYK, Circuit Judge.
    Biax Corporation (“Biax”) appeals the district court’s
grant of attorneys’ fees to Nvidia Corporation (“Nvidia”),
Sony Computer Entertainment America, Inc., and Sony
Electronics, Inc. (collectively, “Sony”) pursuant to 35
U.S.C. § 285. Nvidia and Sony cross-appeal the district
court’s denial of attorneys’ fees against Dorsey & Whitney
LLP (“Dorsey”), Biax’s trial counsel, pursuant to 28 U.S.C.
§ 1927. We reverse the district court’s grant of fees under
§ 285 and affirm the district court’s denial of fees under
§ 1927.
                      BACKGROUND
    Biax is the owner of U.S. Patent Nos. 5,517,628 (“the
’628 patent”) and 6,253,313 (“the ’313 patent”), which
share a common specification and relate to parallel pro-
BIAX CORPORATION   v. NVIDIA CORPORATION                  3




cessing computer systems. Biax sued Nvidia and Sony for
infringement of unspecified claims of the ’313 and ’628
patents on May 29, 2009. 1 At the time, Biax did not


   1    Biax subsequently asserted, inter alia, claims 3–5,
8, 9, 12–16, 19–21, 24, and 25 of the ’313 and claims 1, 9–
14, 16, 17, 25, 26, and 29 of the ’628 patent. Claim 1 of
the ’628 patent is representative and provides:
   A computer comprising:
   a general purpose register file comprising at least
   two general purpose registers;
   a condition code register file distinct from said
   general purpose register file, having a plurality of
   addressable condition code registers, each condi-
   tion code register for representing a condition code
   value as a small number of bits summarizing the
   execution or result of a previously-executed in-
   struction;
   a processor element configured to execute instruc-
   tions, including condition-setting instructions that
   each produce a condition code value for storage in
   one of said condition code registers;
   a branch execution unit configured to execute
   conditional branch instructions that each deter-
   mine a target instruction for execution based on
   analysis of a condition code value from one of said
   condition code registers; and
   a condition code access unit configured to act in
   response to condition-selecting instructions, at
   least one of said condition-selecting instructions
   being one of either said condition-setting instruc-
   tions or said conditional branch instructions, said
   condition-selecting instructions for selecting from
4                   BIAX CORPORATION   v. NVIDIA CORPORATION




specify particular products it alleged to infringe, but
generally accused “graphics systems which employ a
plurality of condition code registers.” J.A. 265–67. On
February 15, 2012, the district court granted Nvidia’s and
Sony’s motions for summary judgment of non-
infringement. Biax appealed, challenging, inter alia,
claim construction under the theory that the district court
improperly read limitations from claim 2, which requires
that condition code registers be shared by all processor
elements, into all of the asserted claims. 2 This court


    said condition code register file a condition code
    register for at least one of:
        storing into said selected condition code regis-
        ter a condition code value produced by one of
        said condition-setting instructions, and
        fetching from said selected condition code reg-
        ister a condition code value for analysis by one
        of said conditional branch instructions;
        said selecting being by direct addressing on a
        condition code address field of the condition-
        selecting instruction.
’628 patent, col. 50 ll. 10–43
    2   Claim 2 provides:
    The computer of claim 1 further comprising:
    at least one additional processor element config-
    ured to execute instructions including condition-
    setting instructions that each produce a condition
    code value for storage in one of said condition code
    registers;
    each said processor element being enabled to de-
    liver the condition code values produced by said
BIAX CORPORATION   v. NVIDIA CORPORATION                   5




affirmed without opinion. Biax Corp. v. Nvidia Corp., 498
F. App’x 998 (Fed. Cir. 2013).
    On April 27, 2012, during the pendency of Biax’s prior
appeal to this court, Nvidia and Sony filed a motion for
attorneys’ fees under both 35 U.S.C. § 285 and 28 U.S.C.
§ 1927. On March 30, 2013, the district court granted-in-
part Nvidia and Sony’s motion, awarding fees against
Biax under § 285 but denying them against Dorsey under
§ 1927. In granting fees under § 285, the district court
applied the then-prevailing standard articulated in
Brooks Furniture Manufacturing, Inc. v. Dutailier Inter-
national Inc., 393 F.3d 1378 (Fed. Cir. 2005), and its
progeny, which required that a defendant demonstrate
that the litigation was objectively baseless and brought in
subjective bad faith in order to be entitled to fees. Id. at
1381.
    The district court found objective baselessness and
bad faith (based on the continued assertion of an objec-
tively baseless claim) and awarded fees for the period
between Biax’s expert’s deposition and the district court’s
summary judgment decision. The district court reasoned
that its 2010 claim construction orders foreclosed Biax’s
infringement contentions, but that Biax nonetheless
continued to pursue litigation until the court issued its
summary judgment order in 2012. Specifically, the dis-



    condition-setting instructions to condition code
    registers of said condition code register file, said
    condition code register file being shared by said
    processor elements, a condition code value pro-
    duced by any of said processor elements being
    readable by said branch execution unit.
’628 patent, col. 50 ll. 44–55.
6                  BIAX CORPORATION   v. NVIDIA CORPORATION




trict court found that Biax’s litigation position was objec-
tively baseless because Biax “persistent[ly] disre-
gard[ed] . . . the Court’s unambiguous statements in
orders,” and that Biax “aggressively pursu[ed] this litiga-
tion [in the district court], even after the unequivocal
statement of its own expert that defendants’ devices could
not infringe the asserted patents . . . .” J.A. 13. On these
findings, the district court awarded fees from the time
Biax’s expert (supposedly) admitted that Biax had no
infringement position under the district court’s claim
construction orders to the time when the district court
decided summary judgment.
    The district court denied Nvidia’s and Sony’s motion
for fees pursuant to § 1927, explaining that Dorsey did
not “exceed[] the bounds of zealous advocacy.” J.A. 22.
    Biax appealed the district court’s award of fees under
§ 285. Nvidia and Sony cross-appealed the district court’s
denial of fees under § 1927. While the appeals were
pending, the Supreme Court decided Octane Fitness, LLC
v. ICON Health & Fitness, Inc., 134 S. Ct. 1749 (2014),
and Highmark Inc. v. Allcare Health Management System,
Inc., 134 S. Ct. 1744 (2014), which changed the standard
for awarding fees under § 285 and the standard for our
appellate review. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(1).
                       DISCUSSION
                             I
    Section 285 provides: “The court in exceptional cases
may award reasonable attorney fees to the prevailing
party.” 35 U.S.C. § 285. In Octane Fitness, the Supreme
Court rejected the Brooks Furniture standard, explaining
that “there is no precise rule or formula for making” a
determination as to whether a case is exceptional. Octane
BIAX CORPORATION   v. NVIDIA CORPORATION                   7




Fitness, 134 S. Ct. at 1756 (quotation and citation omit-
ted). It is a case-by-case determination based on consider-
ing the totality of the circumstances. Id. Such an
exceptional case is “rare.” Id. at 1757. But, if the case
“stands out from others with respect to the substantive
strength of a party’s litigating position . . . or the unrea-
sonable manner in which the case was litigated,” it is
“exceptional” under the meaning of the statute. Id. at
1756. Thus, objective reasonableness remains a relevant
factor. An abuse-of-discretion standard applies in review-
ing all aspects of a district court’s § 285 determination.
Highmark, 134 S. Ct. at 1747.

    We do not read the district court’s fee award here as
being based on Biax’s continued disagreement with the
district court’s claim construction that claim 2’s require-
ment, that “condition code register file[s be] shared by
said processor elements,” ’628 patent, col. 50 ll. 44–55,
was an element of the asserted claims and that the as-
serted claims required “that any processor element is able
to access any condition code register . . . .” J.A. 1157.
Certainly Biax was entitled to seek reconsideration of
that claim construction in the district court and challenge
on appeal what it regarded to be an incorrect claim con-
struction. 3 But Biax could not continue to assert its
infringement claims in the district court unless it had an
objectively reasonable infringement position under the




    3   Indeed, after claim construction, Biax continued
to argue that the “shared by all processor elements”
limitation was incorrectly imported into claim 1 from
claim 2 or that the claim construction only applied to
claim 2. We ultimately rejected these arguments. See
Biax, 498 F. App’x at 998.
8                  BIAX CORPORATION   v. NVIDIA CORPORATION




district court’s claim construction. The district court held
that Biax had no such reasonable position.
    Determining whether the district court was correct
that Biax had no reasonable theory of infringement after
claim construction requires an understanding of Biax’s
argument as to infringement. Biax initially accused
products containing various graphical processor units
(“GPUs”) of infringement. The GPUs at issue are com-
puter chips, each containing a number of sub-units called
“shaders.” Shaders are specially designed processing
engines, capable of quickly modifying graphical data for
presentation to the end user. The shaders on the accused
chips have one or more processors and multiple code
registers associated with them. The processor(s) for a
particular shader can access all of that shader’s own code
registers. But, the processors cannot access the code
registers on other shaders.
    Following claim construction, Biax argued that indi-
vidual shaders were infringing products and that proces-
sors on a particular shader need only access condition
code registers associated with that same shader—that is,
it was not necessary for the processors on an accused
shader to access condition code registers throughout the
chip. According to Biax, because a shader taken in isola-
tion met the stipulated definition of a “computer” (which
is not in dispute) and met the other limitations of claim 1,
each shader taken in isolation infringed. Thus, according
to Biax, even under the district court’s claim construction
it had a reasonable infringement position, and continued
prosecution of the action in the district court was not
objectively baseless or in bad faith.
    In awarding attorneys’ fees under § 285, the district
court here disagreed, holding that, first, Biax’s “own
expert conceded that the processors in defendants’ chips
BIAX CORPORATION   v. NVIDIA CORPORATION                   9




cannot access all of the condition code storage locations,”
and second, the language in its claim construction orders
precluded Biax’s scope argument. J.A. 12.
    As to the first ground, the district court misread the
expert’s testimony. The testimony in question came from
a deposition of Biax’s expert in which counsel for the
defendants asked: “[i]n informing your infringement
opinions for the ’313 patent, did you apply a requirement
that condition code storage locations are shared by all
processor elements?” J.A. 5. The witness clarified: “[b]y
all processor elements [on the chip]? No.” Id. Subse-
quently, counsel for defendants asked again “if there is a
requirement that processor elements need to access any of
the condition code registers or condition code storage
locations in the chip, then [the chip] doesn’t infringe?” Id.
(emphasis added). To this, the witness responded: “[i]t
doesn’t infringe that requirement, no. But there is no
such requirement.” Id. Contrary to the district court’s
interpretation of the exchange, Biax’s expert did not
admit that Biax had no infringement positions under the
district court’s claim construction. Indeed, at oral argu-
ment in our court, counsel for defendants admitted that
the expert did not say that there is no infringement if one
considers only the individual shaders. See Oral Ar. Tr. at
19:55–20:14 (The Court: “[The expert’s testimony] doesn’t
say that there is no infringement if you consider the
individual shaders?” Counsel: “No, no it doesn’t say that,
your honor.”).
    Nor did the district court’s pre-summary judgment
claim construction foreclose Biax’s infringement position.
The claim construction did not require that processors
must be able to access condition code registers on a chip-
wide basis. In its claim construction order, the court
noted that, “while defendants are correct that any proces-
sor element is able to access any condition code register,
10                  BIAX CORPORATION   v. NVIDIA CORPORATION




their argument to include within the definition of ‘condi-
tion code register’ a reference to multiple processor ele-
ments sharing the condition code register is a more
limited definition than Claim 1 requires.” J.A. 1157. This
statement did not resolve claim construction for two
reasons. First, it suggested that single processor devices
could infringe claim 1. Second, what is noticeably absent
from this statement is a clarification of scope—that is,
“able to access any condition code register” on what?
Must a processor element in an accused product only
access every condition code register associated with that
shader? Or, must a processor element be able to access
every condition code register on the entire chip?
     After the district court issued its claim construction
order, the defendants filed a motion for clarification. In
it, they requested that the district court “clarify” its order
by modifying the construction of “condition code register”
to include the requirement that “any processor element is
able to access any condition code register.” J.A. 1171.
The district court rejected this proposed clarification. The
court quoted its prior claim construction order and rea-
soned that, “in the event there is only one processor
element, that processor element is capable of accessing
any of the condition code registers for storing condition
code values” and that “the claim language already ac-
counts for the shared access to condition code registers
upon the introduction of additional processor elements.”
J.A. 1203 (quotations and citation omitted). Additionally,
the court stated that “the claim language clearly provides
that the condition code storages are accessible by each of
said processor elements.” Id. (quotations and citation
omitted). This clarification order did nothing to resolve
the ambiguity as to whether the shared-by-all limitation
applied on a shader-by-shader or chip-by-chip basis; if
anything, the district court’s claim construction orders
BIAX CORPORATION   v. NVIDIA CORPORATION                  11




appeared to suggest that the claim limitations apply to
each shader separately and not to all processors and all
condition code registers on the chip.
     It was not until summary judgment that the district
court finally resolved the uncertainty. For the first time,
the district court expressly announced that “[t]he at-
tempted isolation of a single processor element does not
change the fact that any particular processor element in
the accused chips [must be capable] of accessing all condi-
tion code registers and that any particular condition code
register [must be] shared by all of the other processor
elements which exist within the accused chips.” J.A. 1991
(emphasis added). Thus, it was not until a year and half
after the claim construction orders that the district court
finally answered the “on what” question against Biax.
Biax’s claim construction position, that the asserted
claims read onto individual shaders, was reasonable
under the district court’s claim construction orders,
especially in light of the stipulated definition of “comput-
er,” which was met by the individual shaders. 4
    Because neither the expert testimony nor the claim
construction orders foreclosed Biax’s position and there
was nothing unreasonable about Biax’s infringement
position, the basis for the district court’s award of fees no
longer exists. Thus, even applying the deferential stand-
ard of review under Highmark, the district court’s fee
award must be set aside. In some cases decided under the
old Brooks Furniture standard, we have remanded for the
district court to consider whether the case is “exceptional”
in light of the new Octane Fitness standard. See, e.g.,


    4  The parties stipulated that “computer” meant “a
device that receives, processes, and presents data.”
Appellant’s Br. 10.
12                  BIAX CORPORATION   v. NVIDIA CORPORATION




Checkpoint Sys., Inc. v. All-Tag Sec. S.A., 572 F. App’x
988 (Fed. Cir. 2014). A remand is not necessary here
because neither the defendants nor the district court has
suggested any basis for awarding fees other than the lack
of objective reasonableness, and the resulting bad faith
from continuing to litigate an objectively baseless posi-
tion. Therefore, we reverse rather than vacate the fee
award.
                             II
    In addition to asking for fees under 35 U.S.C. § 285,
the defendants also asked for fees from Dorsey under 28
U.S.C. § 1927. Section 1927 provides:
     Any attorney or other person admitted to conduct
     cases in any court of the United States or any Ter-
     ritory thereof who so multiplies the proceedings in
     any case unreasonably and vexatiously may be
     required by the court to satisfy personally the ex-
     cess costs, expenses, and attorneys’ fees reasona-
     bly incurred because of such conduct.
The district court denied this basis for the fee award. It
found that Dorsey did not “exceed[] the bounds of zealous
advocacy.” J.A. 22. The defendants appeal that denial.
    Under Tenth Circuit law, an assessment of fees under
§ 1927 is appropriate “only in instances evidencing a
serious . . . disregard for the orderly process of justice.”
Braley v. Campbell, 832 F.2d 1504, 1512 (10th Cir. 1987)
(quoting Dreiling v. Peugeot Motors of Am., Inc., 768 F.2d
1159, 1165 (10th Cir. 1985)). Attorney conduct that is
“objectively unreasonable” and manifests “either inten-
tional or reckless disregard of the attorney’s duties to the
court” is sanctionable. Hamilton v. Boise Cascade Ex-
press, 519 F.3d 1197, 1202 (10th Cir. 2008) (quoting
Braley, 832 F.2d at 1512). The defendants have not
argued that making an objectively reasonable argument
BIAX CORPORATION   v. NVIDIA CORPORATION                13




could support sanctions under § 1927, and the district
court did not abuse its discretion by deciding to deny fees
under § 1927. The denial of fees under § 1927 is affirmed
for the same reasons we reverse the award of fees under
35 U.S.C. § 285—because § 1927 is inapplicable when the
lawyer puts forth only objectively reasonable arguments
in the absence of bad faith. Therefore, we need not ad-
dress whether the “unreasonabl[e] and vexatious[]”
standard of § 1927 under Tenth Circuit law is more
stringent than the “exceptional” standard of § 285.
                        CONCLUSION
   We affirm the district court’s denial of fees under 28
U.S.C. § 1927 and reverse the award of fees under 35
U.S.C. § 285.
    AFFIRMED-IN-PART, REVERSED-IN-PART
                           COSTS
   Costs to appellant Biax Corporation.
