by Dennis Crouch
In a display of judicial frustration with attorney conduct, the Federal Circuit (i.e., Chief Judge Moore) recently confronted two appellants for apparently attempting to circumvent word count limitations through a “divide and conquer” briefing strategy. The parties have responded to the court’s show cause order in Focus Products Group International v. Kartri Sales Co., and we are now waiting for the court to act both on the merits of the case and potential sanctions.
The conduct dispute centers on how appellants Kartri Sales and Marquis Mills structured their briefs in appealing a district court decision that found the parties infringed both patents and trade dress related to shower curtain designs. The case was heard before a Federal Circuit panel consisting of Chief Judge Moore, along with Circuit Judges Clevenger and Chen. Patrice Jean of Hughes Hubbard & Reed represented Kartri Sales, Donald Cox his own firm represented Marquis Mills, and Morris Cohen of Goldberg Cohen represented the Sure Fit appellees.
According to court documents, the appellants originally filed briefs that appeared to deliberately divide the issues between them – with Kartri focusing on trademark and trade dress issues, while Marquis concentrated on patent claim construction and infringement. Their initial briefs explicitly incorporated each other’s arguments by reference, which would have effectively doubled their word count beyond the court’s 14,000-word limit for opening briefs. The Federal Circuit promptly struck those briefs as non-compliant, citing Microsoft Corp. v. DataTern, Inc., 755 F.3d 899 (Fed. Cir. 2014) (“incorporation cannot be used to exceed word count”).
The parties then filed “corrected briefs,” but the court seems to have determined they continued the same strategy, albeit more subtly. While avoiding explicit incorporation by reference, the briefs still appear to divide the issues with Marquis’s brief devoted over twenty pages to patent infringement issues spanning three patents with multiple disputed claim terms, while Kartri spent less than one page addressing patent issues. Although these are two separate parties, it is the same accused shower curtain product — that means that a successful non-infringement argument by either party could effectively shield both from liability.
This pattern raised concerns that the appellants were still effectively seeking to benefit from each other’s arguments without respecting word limits. As Chief Judge Moore noted during oral argument on May 5:
Your refile briefs basically appear to continue the identical error. It’s almost like an ‘in your face’ to the court. We don’t see this very often.
Following oral argument, the court issued a sua sponte order to show cause why the attorneys should not be sanctioned for violating Federal Circuit Rule 32(b)(1) and the court’s prior order. The show cause order also directed the appellants to “explain what an appropriate sanction would be” if sanctioned. During oral argument, Chief Judge Moore specifically mentioned the possibility of severe consequences, stating that potential sanctions could include “up to and including the possibility of your clients’ forfeiture of all of the arguments that you failed to properly develop and address in your briefs.”
Both appellants have filed responses to the order to show cause, each denying any intent to circumvent the court’s word limits.
Kartri’s Defense: Kartri argued that its corrected brief was “complete on its face” and did not incorporate or rely on Marquis’s brief. The company explained that as the party who sold the accused products to end-users (rather than manufacturing them), it had different priorities in the litigation and chose to focus more heavily on venue, trademark issues, and trade dress invalidity rather than patent non-infringement. Kartri maintained it “is not requesting that the Court attribute any material to Kartri that is not actually included in Kartri’s brief.”
Marquis’s Defense: Marquis similarly denied any coordination in the corrected briefing, emphasizing its “unique procedural history and substantive posture” as a component supplier impleaded by Kartri. Marquis claimed its corrected brief was developed independently to reflect its distinct role and litigation interests. Marquis also argued that it complied with the court’s directive in good faith.
Appellee Focus Products filed its own brief, arguing that it was substantially harmed by the appellants’ strategy — that it was unable to effectively respond to the many arguments presented by the briefs. Appellees argue that “only forfeiture is fair and commensurate” as a sanction, suggesting the court should consider the appellants’ arguments waived or forfeited.
This procedural dispute highlights a striking contrast with appellate patent practice in other jurisdictions. Some English appellate courts, for instance, adopt a fundamentally different approach. A few years ago, I sat with The Rt Hon. Sir Robin Jacob (Lord Robin) and colleagues at the Court of Appeals in London during patent proceedings. The court dedicated multiple days to oral arguments, meticulously examining lower court decisions in detail, supplemented by a court-appointed technical expert ensuring judges fully comprehended complex subject matter. The “skeleton” briefs permitted in these proceedings bear little resemblance to their namesake—they’re substantially more comprehensive, detailed, and lengthy than anything the Federal Circuit would tolerate.
The American approach effectively employs word limits as a substantive mechanism to restrict appeals to a carefully selected handful of issues — imposing discipline on appellants and streamlining the appellate review process. Chief Judge Moore has been particularly insistent on this point, emphasizing in various judicial panels and oral arguments that appellants should ideally limit their appeals to no more than one to three central issues. The practical impact of stringent word count restrictions is to compel litigants to prioritize arguments strategically. This often means that complex patent cases, despite potentially numerous points of contention, must be distilled into succinct arguments that focus judicial attention on the most critical issues.
The Federal Circuit has not yet ruled on whether sanctions will be imposed in this case. However, the court’s handling of the matter already serves as a cautionary tale for appellate practitioners. As this dispute demonstrates, courts expect good-faith compliance with procedural rules and may respond forcefully when they perceive attempts to gain unfair advantage through technical workarounds.