“As it did below, Pop Top blatantly misconstrued Kobo’s position in arguing that the parties disputed the scope of the ‘code for invoking’ term. Kobo stated it did not dispute Pop Top’s construction of that term. Kobo instead argued that, even under Pop Top’s construction, it does not infringe because the eBooks do not contain any code at all that invokes the highlighting service. Pop Top compounded its misconduct in arguing to us that it presented sufficient evidence to survive summary judgment. Pop Top cited its infringement contentions, but it never mentioned that evidence below in its opposition to Kobo’s motion for summary judgment. Pop Top also cited Mr. Hunter’s declaration yet failed to address, until its reply, the district court’s holding that Pop Top could not rely on that evidence under local rules. In any event, Pop Top did not explain how any of the cited evidence demonstrates that Kobo’s eBooks contain code related to highlighting. Accordingly, Pop Top’s appeal was frivolous as argued.”

As to counsel, the Court noted that it “may hold an attorney jointly and severally liable for sanctions if an appeal is frivolous due to the nature of the advocacy in support of it. As we explained above, Pop Top’s appeal was frivolous entirely because of the baseless arguments advanced by counsel.”


Pop Top Corp. v. Rakuten Kobo Inc., No.2021-2174, 2022 WL 2751662, 2022 U.S.App.LEXIS 19408 (Fed. Cir. July 14, 2022).