       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

            INDUSTRIAL MODELS, INC.,
                 Plaintiff-Appellant

                           v.

SNF, INC., BRANDFX HOLDINGS, LLC, BRANDFX,
              LLC, DBA BRANDFX,
            Defendants-Cross-Appellants
              ______________________

                 2017-1172, 2017-1173
                ______________________

   Appeals from the United States District Court for the
Northern District of Texas in No. 4:15-cv-00689-A, Judge
John H. McBryde.
                ______________________

              Decided: November 7, 2017
               ______________________

    ERIC VAN CAMPEN JANSSON, Jansson Munger McKin-
ley & Kirby Ltd., Racine, WI, argued for plaintiff-
appellant. Also represented by PETER N. JANSSON, MOLLY
H. MCKINLEY; DAVID CURTIS SCHULTE, Thompson &
Knight LLP, Dallas, TX.

   MICHAEL D. ANDERSON, Kelly Hart & Hallman LLP,
Fort Worth, TX, argued for defendants-cross-appellants.
2                            INDUS. MODELS, INC.   v. SNF, INC.



Also represented by HUGH GALEN CONNOR, II, BRIAN
GARRETT.
                ______________________

    Before DYK, O’MALLEY, and WALLACH, Circuit Judges.
WALLACH, Circuit Judge.
    Appellant Industrial Models, Inc. (“Industrial Mod-
els”) appeals decisions of the U.S. District Court for the
Northern District of Texas (“District Court”) that: dis-
missed Counts I–III and VII of Industrial Models’ Com-
plaint—which assert antitrust and tortious interference
claims—for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6), Indus. Models, Inc. v. SNF, Inc.
(Indus. Models I), No. 4:15-CV-689-A, 2015 WL 5606384,
at *4 (N.D. Tex. Sept. 23, 2015); and denied Industrial
Models’ motions for leave to amend the Complaint as to
those counts, Indus. Models, Inc. v. SNF, Inc., No. 4:15-
CV-689-A (N.D. Tex. Aug. 3, 2016) (J.A. 13−14); Indus.
Models, Inc. v. SNF, Inc., No. 4:15-CV-689-A (N.D. Tex.
Nov. 23, 2015) (J.A. 11−12). On appeal, Industrial Models
also seeks sanctions. See Appellant’s Mot. for Sanctions,
ECF No. 52.
    Cross-Appellants SNF, Inc., BrandFX Holdings, LLC,
(“BFX Holdings”) and BrandFX, LLC, doing business as
BrandFX (“BFX”) (collectively, “the SNF entities”) 1 appeal



     1  On August 30, 2013, SNF, Inc. sold its relevant
assets to BFX “at the direction of [BFX Holdings].”
J.A. 747; see J.A. 461, 518−19. Consequently, any refer-
ence to SNF, Inc.’s actions, as distinct from those of the
SNF entities, refer to “SNF” as an individual party. BFX
is the wholly owned subsidiary of BFX Holdings. See J.A.
51; Oral Arg. at 42:29−56, http://oralarguments.cafc.
uscourts.gov/default.aspx?fl=2017-1172.mp3 (Q: “What is
INDUS. MODELS, INC.   v. SNF, INC.                        3



the District Court’s decisions that: denied the SNF enti-
ties’ motion to dismiss for lack of subject matter jurisdic-
tion under Federal Rule of Civil Procedure 12(b)(1), Indus.
Models, Inc. v. SNF, Inc. (Indus. Models II), No. 4:15-CV-
689-A, 2016 WL 7680857, at *1 (N.D. Tex. Aug. 18, 2016);
granted summary judgment in favor of Industrial Models
on Counts IV–VI of its Complaint for a declaratory judg-
ment of noninfringement of trade dress, patent, and
copyright, Indus. Models, Inc. v. SNF, Inc. (Indus. Models
III), No. 4:15-CV-689-A, 2016 WL 4533321, at *1, *4 (N.D.
Tex. Aug. 29, 2016); and awarded attorney fees to Indus-
trial Models, Indus. Models, Inc. v. SNF, Inc., No. 4:15-
CV-689-A (N.D. Tex. Oct. 18, 2016) (J.A. 30−33). For the
reasons stated below, we have jurisdiction pursuant to 28
U.S.C. § 1295(a)(1) (2012), and we affirm-in-part, vacate-
in-part, and remand.
                         BACKGROUND
    This suit relates to Industrial Models’ decision to en-
ter the market for fiberglass utility bodies for use in
trucks. See J.A. 880–81. In early 2013, SNF was in the
business of manufacturing fiberglass utility bodies sold
under the name “Brand FX Body Company.” J.A. 460; see
J.A. 1867−83 (images of these utility bodies). SNF alleg-
edly learned that Badger Truck Center, LLC (“Badger”)
“was offering for sale fiberglass utility bodies with the
same look and appearance as SNF’s.” J.A. 2135. SNF
alleged that Badger admitted that it had manufactured
the bodies using a set of molds created by a separate


the relationship among the three companies?” A: “I
believe the relationship is, as represented there, is that
SNF has an ownership part of [BFX] Holdings, [BFX]
Holdings is the holding company for [BFX] LLC.” Q:
“What percentage ownership does SNF have in [BFX]
Holdings?” A: “I do not know the answer to that.”).
4                            INDUS. MODELS, INC.   v. SNF, INC.



company at Badger’s request, J.A. 2135−36, and further
admitted that the other company used SNF’s utility body,
provided to it by Badger, as a template to create the
molds, see J.A. 2136 (describing the process of making an
unauthorized copy of a design based on an existing mold
as “splashing”); see also J.A. 2137, 2337. Badger further
informed SNF that it had no desire to continue manufac-
turing utility bodies and, in fact, had sold the molds to
Industrial Models. J.A. 2136. SNF allegedly learned that
Industrial Models was attempting to re-sell the molds,
J.A. 1728; see J.A. 2137, and, in February 2013, SNF sent
Industrial Models a cease-and-desist letter indicating that
the “molds were splashed and built from BrandFX prod-
ucts and designs and infringe on our trade dress, our
copyrights and our patents,” J.A. 466; see J.A. 468.
    In March 2013, SNF sued Industrial Models in Texas
state court, alleging trade dress infringement and com-
mon law unfair competition. See J.A. 2339, 2341−42.
Following Industrial Models’ failure to timely answer, the
Texas state court awarded SNF a default judgment and
injunction, J.A. 2345−46, both of which were later re-
versed and remanded for improper service of process, see
Indus. Models, Inc. v. SNF, Inc., No. 02-13-00281-CV,
2014 WL 3696104, at *1 (Tex. App. July 24, 2014). While
the Texas appeal was pending, SNF sold the assets relat-
ing to its utility body product line to BFX Holdings. As
part of the transfer, SNF assigned all of its intellectual
property associated with the utility body product line to
BFX. SNF eventually voluntarily dismissed the claims on
remand. J.A. 2348. A year later, Industrial Models sued
SNF in the District Court, J.A. 51, 71−79, and these
appeals followed.
                       DISCUSSION
                      I. Jurisdiction
   Before reaching the merits of this case, we must first
address whether we have jurisdiction to consider the
INDUS. MODELS, INC.   v. SNF, INC.                          5



merits of this appeal and whether the District Court had
jurisdiction. See Bender v. Williamsport Area Sch. Dist.,
475 U.S. 534, 541 (1986) (“[E]very federal appellate court
has a special obligation to satisfy itself not only of its own
jurisdiction, but also that of the lower courts in a cause
under review . . . . (internal quotation marks and citation
omitted)). Therefore, we assess each below.
                 A. Our Jurisdiction Under
                   28 U.S.C. § 1295(a)(1)
    This case comes before the Federal Circuit via trans-
fer from the Fifth Circuit. See Order Granting Mot. to
Transfer, Indus. Models, Inc. v. SNF, Inc., No. 16-11439
(5th Cir. Nov. 4, 2016). The Supreme Court has instruct-
ed circuit courts to uphold determinations of subject
matter jurisdiction by sister circuits “in the absence of
extraordinary circumstances such as where the initial
decision was clearly erroneous and would work a manifest
injustice.” Christianson v. Colt Indus. Operating Corp.,
486 U.S. 800, 817 (1988) (internal quotation marks and
citation omitted). In other words, “[u]nder law-of-the-case
principles, if the transferee court can find the transfer
decision plausible, its jurisdictional inquiry is at an end.”
Id. at 819; see Parental Guide of Tex., Inc. v. Thomson,
Inc., 446 F.3d 1265, 1268 (Fed. Cir. 2006) (applying this
test).
    To determine plausibility, we follow the Supreme
Court’s directive that “arising under” jurisdiction pursu-
ant to 28 U.S.C. § 1338(a), which provides that “district
courts shall have original jurisdiction of any civil action
arising under any Act of Congress relating to patents,”
“extend[s] only to those cases in which a well-pleaded
complaint establishes either that federal patent law
creates the cause of action or that the plaintiff’s right to
relief necessarily depends on resolution of a substantial
question of federal patent law.” Christianson, 486 U.S. at
808−09. Industrial Models’ Complaint alleged declaratory
6                            INDUS. MODELS, INC.   v. SNF, INC.



judgment of noninfringement of the SNF entities’ patent
rights. See J.A. 76−77. For declaratory judgment actions,
we look “to the action that the declaratory defendant
would have brought” to determine whether jurisdiction
arises under any Act of Congress relating to patents.
Speedco, Inc. v. Estes, 853 F.2d 909, 912 (Fed. Cir. 1988).
In this case, SNF expressly threatened to bring an action
for patent infringement under 35 U.S.C. § 271 (2012).
Though SNF later assigned its patent rights to BFX, as
discussed below, neither SNF nor BFX ever withdrew the
threat to assert claims for infringement of patents relat-
ing to the utility bodies. Because the underlying claim
falls under the patent statute and is not wholly frivolous,
we find that the Fifth Circuit’s decision to transfer the
case to our court is at least plausible, and our “arising
under” jurisdictional inquiry ends there.
B. The District Court’s Jurisdiction Pursuant to 28 U.S.C.
                         § 2201(a)
    The District Court denied the SNF entities’ Rule
12(b)(1) Motion to Dismiss the declaratory judgment
claims for patent, copyright, and trade dress. See Indus.
Models II, 2016 WL 7680857, at *1. We review de novo a
district court’s decision to dismiss for lack of subject
matter jurisdiction. Arris Grp., Inc. v. British Telecomms.
PLC, 639 F.3d 1368, 1373 (Fed. Cir. 2011).
     A court has subject matter jurisdiction under the De-
claratory Judgment Act, 28 U.S.C. § 2201(a), if “the facts
alleged, under all the circumstances, show that there is a
substantial controversy, between parties having adverse
legal interests, of sufficient immediacy and reality to
warrant the issuance of a declaratory judgment.”
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127
(2007) (internal quotation marks, footnote, and citation
omitted). The requirement of a substantial controversy
“is the same as an Article III case or controversy.” Teva
Pharm. USA, Inc. v. Novartis Pharm. Corp., 482 F.3d
INDUS. MODELS, INC.   v. SNF, INC.                         7



1330, 1338 (Fed. Cir. 2007) (citing Aetna Life Ins. Co. v.
Haworth, 300 U.S. 227, 239–41 (1937)).
    To determine whether a case or controversy existed,
we consider, inter alia: whether a party has “prov[ed] a
reasonable apprehension of suit,” 2 Prasco, 537 F.3d at
1336 (citation and footnote omitted); whether there has
been “meaningful preparation to conduct potentially
infringing activity,” id. at 1336 n.4 (internal quotation
marks and citation omitted); whether a party demon-
strates “refusal to grant . . . a covenant not to sue,” Arris
Grp., 639 F.3d at 1381; and “the nature and extent of any
communications between the declaratory plaintiff and the
patentee” related to infringement, id. at 1378 (explaining
that parties involved in discussions, even where those
parties are not involved in a suit, may be included in a
declaratory judgment claim).
    Sufficient evidence exists here to suggest an actual
case or controversy between the parties. Industrial
Models has devoted substantial resources to its new
model utility mold business. See J.A. 880. SNF sent
cease-and-desist letters threatening imminent suit for


    2    While we determined that MedImmune overruled
the use of the “reasonable apprehension of suit” inquiry as
the sole factor in determining jurisdiction, see Teva
Pharm., 482 F.3d at 1339 (“[B]ecause the Supreme Court
in MedImmune cautioned that our declaratory judgment
reasonable-apprehension-of-suit test contradicts and
conflicts with its precedent, these Federal Circuit tests
have been overruled by an intervening Supreme Court
decision.” (internal quotation marks, alterations, and
citation omitted)), our case law makes clear that we may
continue to look to this fact as a helpful tool, see Prasco,
LLC v. Medicis Pharm. Corp., 537 F.3d 1329, 1336 (Fed.
Cir. 2008).
8                            INDUS. MODELS, INC.   v. SNF, INC.



alleged infringement of patent, copyright, and trade dress
protections, see J.A. 466, 468, and filed a suit alleging
trade dress infringement, see J.A. 2341. Each SNF entity
has refused to sign covenants not to sue, see J.A. 32, 2761,
and all maintained litigation positions in this suit for
nearly a year before filing their Rule 12(b)(1) Motion to
Dismiss, see J.A. 430. This is enough, if minimally, to
satisfy the case or controversy requirements of Article III.
    Although SNF assigned its intellectual property (“IP”)
rights before the declaratory judgment suit was filed,
compare J.A. 747, with J.A. 51, we find sufficient evidence
demonstrating a case or controversy still exists between
Industrial Models and SNF. Although the SNF entities
counter that our decision in King Pharmaceuticals, Inc. v.
Eon Labs, Inc. demonstrates that a court does not retain
subject matter jurisdiction over a prior owner of IP who
sold all of its interests, Cross-Appellants’ Br. 52−53; see
King Pharm., 616 F.3d 1267 (Fed. Cir. 2010), that case is
easily distinguished. In King Pharmaceuticals, the prior
patent owner made stipulations to waive its rights to sue
and did not participate in the relevant litigation. See 616
F.3d at 1281–82. In contrast, SNF refused to sign any
covenant not to sue and participated in the proceedings
below represented by the same counsel as BFX and BFX
Holdings, see J.A. 32, 146, and all three parties retain
common ownership interests, see J.A. 1728. The District
Court made a factual finding, moreover, that all of the
SNF entities acted collectively in connection with the
threatened enforcement of the IP rights at issue—a
finding we do not disturb. We find that SNF’s sale of its
IP does not deprive the court of subject matter jurisdiction
under these circumstances.
                   II. Antitrust Claims
   The District Court dismissed Counts I–III and VII of
Industrial Models’ Complaint, Indus. Models I, 2015 WL
5606384, at *1, *4, which alleged that the SNF entities
INDUS. MODELS, INC.   v. SNF, INC.                         9



violated Sherman Act §§ 1–2, 15 U.S.C. §§ 1–2 (2006), see
J.A. 71–75, and that the SNF entities collectively commit-
ted tortious interference with prospective economic ad-
vantage, see J.A. 79.       We review a district court’s
dismissal under Rule 12(b)(6) according to the law of the
regional circuit, Content Extraction & Transmission LLC
v. Wells Fargo Bank, Nat’l Ass’n, 776 F.3d 1343, 1346
(Fed. Cir. 2014), here, the Fifth Circuit. The Fifth Circuit
reviews dismissals for failure to state a claim “de novo,
taking the allegations of the complaint to be true.” Scan-
lan v. Tex. A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003).
    Federal Rule of Civil Procedure 8(a)(2) requires that a
complaint contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” To
survive a motion to dismiss for failure to state a claim, the
facts as pleaded must allow the court to infer that the
plaintiff’s right to relief is plausible. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). In relevant part, the District
Court found that the SNF entities were immunized from
the claims under the Noerr-Pennington doctrine, 3 which
allows parties to petition the Government for certain
action without facing antitrust scrutiny. Indus. Models I,
2015 WL 5606384, at *2–3. 4



    3   The Noerr-Pennington doctrine takes its name
from two Supreme Court cases, E. R.R. Presidents Confer-
ence v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961), and
United Mine Workers of Am. v. Pennington, 381 U.S. 657
(1965).
    4   The District Court also dismissed other alterna-
tive theories of antitrust liability. See Indus. Models I,
2015 WL 5606384, at *3 & n.1. Because we affirm the
District Court’s holding on the grounds of Noerr-
Pennington immunity, we decline to consider the alter-
nate holdings of dismissal.
10                             INDUS. MODELS, INC.   v. SNF, INC.



            A. The Noerr-Pennington Doctrine
     “The essence of the [Noerr-Pennington] doctrine is
that parties who petition the government for governmen-
tal action favorable to them cannot be prosecuted under
the antitrust laws even though their petitions are moti-
vated by anticompetitive intent.” Video Int’l Prod., Inc. v.
Warner-Amex Cable Commc’ns, Inc., 858 F.2d 1075, 1082
(5th Cir. 1988). Governmental action includes “‘petitions’
made to the . . . judicial branch[] . . . in the form of admin-
istrative or legal proceedings.” Id. Noerr-Pennington
immunity “protect[s] those acts reasonably and normally
attendant upon effective litigation,” including “threats of
litigation.” Coastal States Mktg., Inc. v. Hunt, 694 F.2d
1358, 1367 (5th Cir. 1983); accord McGuire Oil Co. v.
Mapco, Inc., 958 F.2d 1552, 1560 (11th Cir. 1992) (simi-
lar).
     There is a recognized exception to Noerr-Pennington
immunity for “sham litigation.” Coastal States, 694 F.2d
at 1368. Under this exception, activities and litigation
“not genuinely aimed at procuring favorable government
action” will not be immunized from antitrust allegations.
Allied Tube & Conduit Corp. v. Indian Head, Inc., 486
U.S. 492, 500 n.4 (1988) (citation omitted). The Supreme
Court has stated that “sham litigation” is that which is
both “objectively baseless in the sense that no reasonable
litigant could realistically expect success on the merits,”
and subjectively “an attempt to interfere directly with the
business relationships of a competitor,” through “use of
the governmental process―as opposed to the outcome of
that process―as an anticompetitive weapon.” Prof’l Real
Estate Inv’rs, Inc. v. Columbia Pictures Indus., Inc., 508
U.S. 49, 60−61 (1993) (internal quotation marks, brack-
ets, and citations omitted). “[A]n objectively reasonable
effort to litigate cannot be sham regardless of subjective
intent.” Id. at 57 (footnote omitted).
INDUS. MODELS, INC.   v. SNF, INC.                       11



 B. Noerr-Pennington Immunity Bars Industrial Models’
                   Antitrust Claims
    Industrial Models argues that “[t]he facts set forth in
the Complaint clearly and robustly allege that [the SNF
entities] engaged in objectively baseless litigation threats
and actual litigation,” such that the sham litigation
exception should apply. Appellant’s Br. 48. We disagree.
    In Counts I–III and VII of the Complaint, 5 Industrial
Models alleges the following: (1) SNF “made a specific
offer . . . to enter an agreement restraining interstate
trade” before the Texas lawsuit, J.A. 71, referring to
SNF’s February 2013 cease-and-desist letter, see J.A. 56;
(2) SNF filed and continued to prosecute a “bad-faith
Texas lawsuit,” J.A. 71, see J.A. 72; (3) SNF made further
offers to collude during the Texas lawsuit, J.A. 71, refer-
ring to a July 2013 teleconference between parties’ coun-
sel during the Texas litigation, see J.A. 59, 62; (4) SNF
pressured Badger to enter an agreement restraining
trade, J.A. 72, and interfered with Badger’s potential
relationship with Industrial Models, J.A. 79, referring to
communications asking Badger to cease-and-desist sale of
allegedly infringing products, see J.A. 65–66; (5) the SNF
entities did not retract certain infringement allegations,
J.A. 72; and (6) the SNF entities restrained competition
by “causing stoppage and reduction in output by” Indus-


   5    Industrial Models does not make separate argu-
ments with respect to the dismissal of Count VII (tortious
interference). See generally Appellant’s Br. Although
Noerr-Pennington arose in the antitrust context, courts
have extended it to protect other claims, including com-
mon law tortious interference claims. Video Int’l Prod.,
858 F.2d at 1084. Our reasoning for affirming the District
Court’s dismissal with respect to Counts I−III therefore
applies with equal force to Count VII.
12                           INDUS. MODELS, INC.   v. SNF, INC.



trial Models, J.A. 73, referring to Industrial Models’
decision not to produce the subject molds based on the
SNF entities’ refusal to withdraw infringement allega-
tions and efforts to obtain an injunction, see J.A. 64. On
the face of the Complaint, all acts alleged are either
litigation or attendant acts related to the litigation, such
that Noerr-Pennington immunity applies.
    The sham litigation exception does not save Industrial
Models’ antitrust claims. Industrial Models has not
demonstrated that any of the alleged acts related to the
Texas litigation were objectively baseless. Moreover,
unlike in other cases finding the sham litigation exception
applicable, the SNF entities did not engage in “a pattern
of baseless, repetitive claims.” Cal. Motor Transp. Co. v.
Trucking Unlimited, 404 U.S. 508, 513 (1972); see id. at
515 (describing sham litigation as “massive, concerted,
and purposeful activities of the group” to “harass and
deter their competitors” from access to the courts); see
also Otter Tail Power Co. v. United States, 410 U.S. 366,
380 (1973) (describing sham litigation as “evidenced by
repetitive lawsuits carrying the hallmark of insubstantial
claims”).
     With respect to patent and copyright, the Complaint
simply alleged that before the filing of the Texas lawsuit,
SNF made two statements to Industrial Models and made
similar statements to Badger. In a first letter to Indus-
trial Models, SNF stated that the molds “infringe on our
trade dress, our copyrights and our patents.” The second
cease-and-desist letter stated that “BrandFX owns valua-
ble patent and trade dress rights in the molds.” J.A. 466,
468. None of these allegations included a clear threat of
litigation with respect to patent or copyright infringe-
ment, and the Texas lawsuit did not include any claims of
patent or copyright infringement. Such isolated state-
ments, even if objectively unreasonable, without specific
threats of litigation are in the circumstances of this case
insufficient to support an antitrust claim.
INDUS. MODELS, INC.   v. SNF, INC.                       13



   C. Industrial Models’ Remaining Arguments Fail
    Industrial Models makes several additional argu-
ments why dismissal of its antitrust claims was improper.
See Appellant’s Br. 56−65. All of these arguments, how-
ever, are subsumed by the finding that Noerr-Pennington
immunity would apply to SNF’s alleged conduct.
    First, Industrial Models contends that its argument
on invitations to collude does not fall within the scope of
the Noerr-Pennington doctrine because “offers to settle”
are excluded from immunity following the Supreme
Court’s decision in Federal Trade Commission v. Actavis,
Inc., 133 S. Ct. 2223 (2013). Appellant’s Br. 63. While
Actavis stated that settlements do not, as a blanket rule,
always fall under Noerr-Pennington, 133 S. Ct. at
2230−31, it limited its holding to particular types of
settlement agreements in the context of the Hatch-
Waxman drug-regulatory framework, see id. at 2230, a
situation entirely separate from the settlement discus-
sions unsuccessfully attempted in this case. We see no
reason to apply Actavis to routine unsuccessful offers to
settle that are clearly acts “attendant upon” litigation.
Coastal States, 694 F.2d at 1367.
    Second, Industrial Models argues that its monopoly
by acquisition claim is not covered by Noerr-Pennington
immunity because the allegations are not a form of gov-
ernment-petitioning. Appellant’s Br. 64−65. Yet, the
phrase “monopoly by acquisition” does not appear in the
Complaint. In any event, the only allegations of acquisi-
tion merely state market shares of various companies in
the fiberglass utility body industry, see J.A. 68−69, and do
not allege facts sufficient to demonstrate a plausible claim
for relief, see Ancar v. Sara Plasma, Inc., 964 F.2d 465,
470 (5th Cir. 1992) (summarizing requirements to plead
monopoly by acquisition as possession of monopoly power
in the relevant market and willful acquisition “as distin-
guished from growth or development as a consequence of
14                            INDUS. MODELS, INC.   v. SNF, INC.



a superior product, business acumen, or historic accident”
(footnotes omitted)).
    Third, Industrial Models argues that certain alleged
acts constituting deceptive conduct would not fall under
Noerr-Pennington because they “are not described by the
Complaint as litigation or as threats of litigation.” Appel-
lant’s Br. 54; see id. at 52−55 (listing allegations). Indus-
trial Models, however, does not cite to the Complaint to
support its argument. Accordingly, these arguments are
waived. See SmithKline Beecham Corp. v. Apotex Corp.,
439 F.3d 1312, 1320 (Fed Cir. 2006) (waiving an underde-
veloped argument); see also Fed. R. App. P. 28(a)(8)(A)
(explaining that an appellant’s argument must contain
“contentions and the reasons for them, with citations to
the authorities and parts of the record on which the
appellant relies”).
                    III. Leave to Amend
     The District Court twice denied Industrial Models’
Motions for Leave to Amend the Complaint. J.A. 12, 14.
The Fifth Circuit reviews denials of motions for leave to
amend for abuse of discretion. See SGIC Strategic Glob.
Inv. Capital, Inc. v. Burger King Eur. GmbH, 839 F.3d
422, 428 (5th Cir. 2016). In the Fifth Circuit, a court
considers the following five factors to determine whether
to grant leave to amend: (1) “undue delay,” (2) “bad faith
or dilatory motive,” (3) “repeated failure to cure deficien-
cies by previous amendments,” (4) “undue prejudice to the
opposing party,” and (5) “futility of the amendment.”
Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004)
(citation omitted). Industrial Models initially filed its
response to the SNF entities’ Motion to Dismiss instead of
seeking leave to amend, compare J.A. 115, with J.A. 176,
waited several months before requesting leave to amend,
J.A. 176, 277, and did not assert new facts to cure the
deficiencies of the original Complaint in either proposed
amendment, compare J.A. 180−81 (summarizing alleged
INDUS. MODELS, INC.   v. SNF, INC.                          15



new facts with citations to paragraphs of the proposed
First Amended Complaint), and J.A. 277, 371−73 (alleg-
ing new facts of the proposed Second Amended Com-
plaint), with J.A. 58, 65−67, 71−72 (original Complaint).
Upon consideration of the record, we find that the District
Court did not abuse its discretion in denying leave to
amend.
IV. Summary Judgment on Industrial Models’ Request for
   Declaratory Judgment for Noninfringement of Trade
                    Dress Claims
    The SNF entities contest the District Court’s grant of
Industrial Models’ Motion for Summary Judgment for
declaratory judgment of noninfringement of trade dress.
Indus. Models III, 2016 WL 4533321, at *4. 6 The Fifth
Circuit reviews a grant of summary judgment de novo,
applying the same standard that the district court ap-
plied. Smith v. Reg’l Transit Auth., 827 F.3d 412, 417
(5th Cir. 2016). “Summary judgment is proper where
there is no genuine dispute of material fact, and a party is
entitled to judgment as a matter of law.” Id. (citing Fed.
R. Civ. P. 56(a)). Under 15 U.S.C. § 1125(a)(1) (2012), a
trade dress owner has a cause of action for the use by any
person of “any word, term, name, symbol, or device, or any
combination thereof . . . which . . . is likely to cause confu-
sion . . . as to the origin, sponsorship, or approval of his or
her goods.” The Supreme Court has interpreted this
statute to grant protectable trade dress rights to unregis-
tered trademarks in product design if a product is shown
to be “distinctive,” which requires the product, inter alia,
to be non-functional and “likely to cause confusion with
the product for which protection is sought.” Wal-Mart


    6   The SNF entities do not contest the District
Court’s summary judgment ruling with respect to issues
of patent and copyright infringement.
16                            INDUS. MODELS, INC.   v. SNF, INC.



Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 210, 216
(2000) (citation omitted).
     The District Court found that the SNF entities failed
to identify anything more than the “overall shape, profile
and appearance” of the utility bodies as the trade dress.
Indus. Models III, 2016 WL 4533321, at *4. We agree.
SNF has not presented any evidence on functionality
beyond the bare assertion by BFX’s Vice President that
the features claimed are aesthetic, see J.A. 1730–31,
which cannot overcome the presumption of functionality,
see 15 U.S.C. § 1125(a)(3) (“In a civil action for trade dress
infringement . . . , the person who asserts trade dress
protection has the burden of proving that the matter
sought to be protected is not functional.”). This alone
requires summary judgment in favor of Industrial Models.
The SNF entities also conceded that they provided no
evidence of nexus or likelihood of confusion between the
claimed molds and the purportedly infringing molds. See
Oral Arg. at 21:01−09 (“If you’re talking about a compari-
son of our trade dress to the [purportedly infringing
utility body], no, I don’t believe that is in [the opposition
to summary judgment].”).
                      V. Attorney Fees
    The District Court found the case exceptional and
granted Industrial Models’ Motion for Attorneys’ Fees on
the declaratory judgment of noninfringement claims. J.A.
33. It granted a total award of $239,408.25, see J.A. 33,
without stating what amount of fees were awarded pur-
suant to the three individual statutory grants, 35 U.S.C.
§ 285 (patent), 17 U.S.C. § 505 (2012) (copyright), and 15
U.S.C. § 1117(a) (trade dress). We review issues “unique
to patent law,” including the award of attorney fees,
consistent with our circuit’s precedent. Madey v. Duke
Univ., 307 F.3d 1351, 1358 (Fed. Cir. 2002). “We review a
district court’s grant of attorney[] fees for an abuse of
INDUS. MODELS, INC.   v. SNF, INC.                       17



discretion.” Romag Fasteners, Inc. v. Fossil, Inc., 866 F.3d
1330, 1334 (Fed. Cir. 2017).
    We begin by explaining the three frameworks govern-
ing attorney fees in this case. Regarding patent claims, a
“court in exceptional cases may award reasonable attor-
ney fees to the prevailing party.” 35 U.S.C. § 285. In
Octane Fitness, LLC v. ICON Health & Fitness, Inc., the
Supreme Court clarified that “an exceptional case is
simply one that stands out from others with respect to the
substantive strength of a party’s litigating position (con-
sidering both the governing law and the facts of the case)
or the unreasonable manner in which the case was liti-
gated.” 134 S. Ct. 1749, 1756 (2014) (internal quotation
marks and footnote omitted). Regarding trade dress
claims under 15 U.S.C. § 1117(a), the Octane Fitness
standard for evaluating exceptional cases under the
patent laws applies. See Romag Fasteners, 866 F.3d at
1335 (“This is unsurprising, as the language of the Patent
Act and the Lanham Act for attorney[] fees is identical.”).
Finally, regarding copyright claims, section 505 of the
Copyright Act provides that a court “may . . . award a
reasonable attorney’s fee to the prevailing party.” 17
U.S.C. § 505.
    On the record here, we agree that an award of attor-
ney fees is appropriate, but only with respect to fees
awarded under the Lanham Act. The SNF entities’
conduct with respect to the asserted declaratory judgment
claims of noninfringement for patent and copyright was
not unreasonable, and, if it awarded fees under either of
those statutory authorities, the District Court abused its
discretion. The SNF entities never actually filed claims of
copyright or patent infringement and, in this litigation,
they simply defended themselves against declaratory
judgment claims. See J.A. 76−79. Their submissions to
the court evinced no undue delay, see J.A. 35−50 (docket),
and they made nonfrivolous submissions with respect to
copyright and patent claims, including statements that
18                           INDUS. MODELS, INC.   v. SNF, INC.



the SNF entities required more documentation from
Industrial Models, such as brochures, to assess potential
copyright infringement, and more information on compo-
nent parts of Industrial Models’ mold to assess potential
patent infringement, see J.A. 2126−27 (citing, inter alia,
J.A. 171−72).
     However, as the SNF entities themselves note, “[t]he
legal dispute between SNF and Industrial Models has
always been about trade dress.” J.A. 2119. The bulk of
the SNF entities’ actions and conduct, including the suit
filed in Texas state court and voluntarily dismissed on
remand, related to SNF’s claims of trade dress infringe-
ment. Trade dress was also the only declaratory judg-
ment holding the SNF entities chose to appeal to our
court, see Cross-Appellants’ Br. 60−66, and we have
thoroughly reviewed the limited evidence presented below
on this claim and found their showing insufficient to
defeat Industrial Models’ Motion for Summary Judgment,
see supra Section IV. The SNF entities continued to
litigate purported trade dress claims while providing only
bare assertions of non-functionality, see J.A. 1730–31, no
evidence of likelihood of confusion with Industrial Models’
proposed product, see Oral Arg. at 21:01−09, and no direct
consumer surveys or testimony, even though the focus of
trade dress infringement analysis “is on how [the evi-
dence] demonstrates that the meaning of the mark or
trade dress has been altered in the minds of consumers,”
Amazing Spaces, Inc. v. Metro Mini Storage, 608 F.3d 225,
248 (5th Cir. 2010) (internal quotation marks and citation
omitted).
    The District Court did not abuse its discretion in find-
ing this case exceptional with respect to the trade dress
claims. Because we uphold the award of attorney fees
only under the Lanham Act, we remand to the District
Court for clarification of whether it awarded fees solely
under the Lanham Act and, if not, for determination of
INDUS. MODELS, INC.   v. SNF, INC.                     19



the appropriate amount of the total awarded attorney
fees.
                          CONCLUSION
    We have considered the parties’ remaining arguments
and find them unpersuasive. We affirm the District
Court’s denial of the SNF entities’ Motion to Dismiss for
Lack of Subject Matter Jurisdiction, grant of the SNF
entities’ Motion to Dismiss Counts I−III and VII of Indus-
trial Models’ Complaint, denials of Industrial Models’
Motions for Leave to Amend, and grant of Industrial
Models’ Motion for Summary Judgment for declaratory
judgment of noninfringement of trade dress; we vacate
the District Court’s grant of attorney fees to the extent
they were awarded under any provision other than 15
U.S.C. § 1117(a); and we remand with instructions to
calculate attorney fees under 15 U.S.C. § 1117(a). We
also deny Industrial Models’ Motion for Sanctions pursu-
ant to Federal Rule of Appellate Procedure 38. For these
reasons, the Decisions of the U.S. District Court for the
Northern District of Texas are
  AFFIRMED-IN-PART, VACATED-IN-PART, AND
                REMANDED
