     Case: 18-50097      Document: 00514585815         Page: 1    Date Filed: 08/03/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                      No. 18-50097                        FILED
                                                                     August 3, 2018

NAUTILUS, INCORPORATED,                                              Lyle W. Cayce
                                                                          Clerk
              Plaintiff - Appellee Cross-Appellant

v.

ICON HEALTH & FITNESS, INCORPORATED,

              Defendant - Appellant Cross-Appellee




                  Appeals from the United States District Court
                        for the Western District of Texas
                              USDC No. 5:16-CV-80


Before JONES, ELROD, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       After ICON Health & Fitness, Inc. (“ICON”) filed a Notice of Appeal in
the instant matter seeking review of the district court’s grant of summary
judgment in favor of Nautilus, Inc. (“Nautilus”) on Nautilus’ claim for
payments under a patent licensing agreement, Nautilus also filed a Notice of
Appeal.     In its Notice, Nautilus states that it appeals the district court’s



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 18-50097
Memorandum Opinion and Order granting the Plaintiff’s (Nautilus’) Motion
for Summary Judgment, denying the Defendant’s (ICON’s) Motion for
Summary Judgment, and denying as moot all other motions, as well as the
judgment entered by the district court in its favor, but “only to the extent the
[c]ourt determined that it must conduct an infringement analysis under
Chinese Patent Law to determine whether ICON must pay royalties on the
products at issue pursuant to the parties’ contract.”     ICON now moves this
court to dismiss Nautilus’ cross-appeal. Nautilus has not filed an opposition to
ICON’s motion since, according to ICON, “Nautilus’ counsel . . . approved the
statement of its position” set forth by ICON in such motion.
      Upon review of the pertinent district court entries and the applicable
law, and considering Nautilus’ lack of opposition, this Court finds that ICON’s
Motion to Dismiss Cross-Appeal has merit.        As this Court has previously
recognized, “[a]ppellate courts review judgments, not opinions.” Cooper Indus.,
Ltd. v. Nat’l Union Fire Co. of Pittsburgh, PA, 876 F.3d 119, 126 (5th Cir. 2017)
(citing Jennings v. Stephens, — U.S. —, 135 S.Ct. 793, 799, 190 L.Ed.2d 662
(2015)). Only an “aggrieved” party may appeal a judgment. Cooper Indus.,
Ltd., 876 F.3d at 126 (internal quotations and citations omitted); Deposit Guar.
Nat’l Bank v. Roper, 445 U.S. 326, 333-34, (1980).        A cross-appeal is an
appropriate vehicle for a prevailing party to seek modification of a judgment.
Cooper Indus., Ltd., 876 F.3d at 126 (citing Ward v. Santa Fe Indep. Sch. Dist.,
393 F.3d 599, 604 (5th Cir. 2004)). However, a cross-appeal is generally “not
proper to challenge a subsidiary finding or conclusion when the ultimate
judgment is favorable to the party cross-appealing.” Cooper Indus., Ltd., 876
F.3d at 126 (quoting Nat’l Union Fire Ins. Co. of Pittsburgh v. W. Lake Acad.,
548 F.3d 8, 23 (1st Cir. 2008)) (internal quotations omitted).
      On appeal, Nautilus does not take issue with or advance that it has been
“aggrieved” by anything in the district court’s judgment or amended final
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                                      No. 18-50097
judgment, which cumulatively entered judgment in Nautilus’ favor and
ordered ICON to pay Nautilus specified amounts of damages and post-
judgment interest, as well as reasonable costs and attorney’s fees to later be
determined.      Rather, Nautilus opposes the portion of the district court’s
reasoning in its Memorandum Opinion in which it concluded that its analysis
of whether Nautilus was due any royalties under the patent licensing
agreement at issue had to be conducted under Chinese Patent Law. This court
finds that Nautilus’ cross-appeal is improper since Nautilus seeks to challenge
in it only a “subsidiary finding or conclusion.” See Cooper Indus., Ltd., 876
F.3d at 126. Accordingly, we GRANT ICON’s motion and DISMISS Nautilus’
cross-appeal.
       In so ruling, the Court recognizes that Nautilus apparently filed its
Notice of Appeal to protect its right to defend the district court’s judgment in
its favor on the grounds stated therein 1 and notes that in response to ICON’s
appeal Nautilus is free to urge any alternative ground in support of the district
court’s judgment in its favor. See Cooper Ins., Ltd., 876 F.3d at 126. Nothing
in this opinion shall be construed as prejudicing its right to do so.




       1  ICON indicates in its Motion to Dismiss Cross-Appeal that “Nautilus does not
disagree with ICON’s analysis and does not oppose having its cross-appeal dismissed if this
Court agrees that may be done without Nautilus losing its opportunity to challenge the
district court’s ruling that it had to conduct an infringement analysis under Chinese Patent
Law . . .”
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