Federal Circuit Dismisses Appeal in Floor Marking Tape Patent Dispute

Updated on Dec. 15, 2025 | Written by Patsnap Team

Introduction

The U.S. Court of Appeals for the Federal Circuit swiftly terminated an appeal in a patent infringement dispute, offering a pointed lesson on the strategic calculus of pursuing appellate review. In Clifford A. Lowe v. Shieldmark, Inc. (Case No. 25-1913), the court summarily affirmed the lower court’s decision and granted the defendant’s motion for costs. While stopping short of imposing further sanctions under Federal Rule of Appellate Procedure 38, the panel’s declaration that the appeal’s outcome was “not in doubt” serves as a stark warning to patent litigants. This case, involving U.S. Patent No. 10,214,664 for floor marking tape, highlights the Federal Circuit’s low tolerance for appeals lacking substantial legal questions, providing critical insights for patent infringement litigators considering post-judgment strategy.

Case Summary

Case Overview

The Parties

• Plaintiff Clifford A. Lowe: An individual inventor asserting rights in the industrial safety and facility identification space.
• Defendant Shieldmark, Inc.: The accused infringer and prevailing party in the district court.

The Patent at Issue

• U.S. Patent No. 10,214,664 (“the ’664 patent”): The patent is directed to floor marking tape. Key claims likely cover specific structural or adhesive features designed for durability and visibility in industrial environments. Understanding such patents is crucial for FTO (freedom to operate) analyses. To analyze patent landscapes for similar technologies, tools like Patsnap Eureka IP can be invaluable.

The Accused Product(s)
The litigation centered on Shieldmark’s floor marking tape products, which Lowe alleged infringed the ’664 patent.

Legal Representation

• Plaintiff’s Counsel: Renner, Kenner, Greive, Bobak, Taylor & Weber, LPA.
• Defendant’s Counsel: Sand, Sebolt & Wernow Co., LPA.

Litigation Timeline & Procedural History

• District Court Filing: The original infringement action was filed in a district court on July 9, 2025.
• District Court Outcome: The lower court ruled in favor of Shieldmark.
• Federal Circuit Appeal: Lowe appealed to the U.S. Court of Appeals for the Federal Circuit (CAFC). The appeal was processed with remarkable speed, lasting only 58 days from filing to closure on September 5, 2025. This short timeline strongly indicates a procedural dismissal or summary affirmance without full merits briefing.

The Verdict & Legal Analysis

Outcome
The Federal Circuit’s order was twofold:

1. Summary Affirmance & Cost Award: The court granted Shieldmark’s motion, summarily affirming the district court’s judgment and awarding costs to Shieldmark as the prevailing party.
2. Rule 38 Sanctions Denied: The court denied further sanctions under Fed. R. App. P. 38, stating the appeal was not “so wholly frivolous” as to warrant attorney fees. However, it explicitly noted “the outcome of this appeal is not in doubt.”

💡 Key Insight: The court’s dual finding—that an appeal is not frivolous enough for sanctions but its outcome is never in doubt—establishes a dangerous middle ground for appellants. It signals that even appeals with superficial merit can be deemed legally futile and trigger adverse cost awards.

Verdict Cause Analysis

• Basis for Termination: The core ruling was a dismissal of the appeal. A summary affirmance signals the court found no reversible error in the district court’s record.
• Rule 38 Sanctions Analysis: The discussion of Rule 38 is the most legally instructive element. By finding the appeal was not “so wholly frivolous,” the court drew a nuanced line, suggesting minimal, superficial merit in an overwhelmingly weak appeal.

Legal Significance

• Strategic Gatekeeping: This case exemplifies the Federal Circuit’s role in efficiently filtering out appeals that do not present genuinely disputable issues of patent validity, infringement, or procedure.
• Precedent on Frivolous Appeals: It contributes to case law defining the threshold for “frivolous” appeals, indicating “wholly frivolous” is a high bar, but appeals with obvious outcomes face summary disposition.

Strategic Takeaways

• ⚖️ For Patent Attorneys: Before appealing, conduct a ruthless assessment. The question isn’t whether you lost, but whether the record shows clear, reversible error. The risk of summary affirmance and costs is high for marginal appeals.
• ⚖️ For Accused Infringers (Appellees): Evaluate grounds for a motion for summary affirmance promptly. While Rule 38 attorney fees are hard to get, recovering costs is a valuable tool.
• 🔬 For R&D Teams: A successful defense at the district court, when upheld summarily on appeal, provides durable clarity for product continuity. To mitigate risk, research patent families on platforms like Patsnap Eureka IP to understand broader patent landscapes.

Industry & Competitive Implications

For the industrial safety and facility marking industry, this case reinforces the importance of robust prior art searching and freedom-to-operate (FTO) analysis. The outcome demonstrates that a strong defense at the district court can be decisively upheld, potentially discouraging marginal appeals. Companies should track litigation trends to understand evolving enforcement strategies.

Key Takeaways

• ⚖️ The Federal Circuit’s patience for weak patent appeals is limited. Summary affirmances with cost awards are a likely outcome for appeals lacking a substantial legal question.
• ⚖️ The “non-frivolous but futile” appeal is a new risk category. An appeal can avoid Rule 38 sanctions yet still be deemed so lacking in merit that its outcome is “not in doubt,” resulting in costs.
• 🔬 District court victories are critically important. A robust defense on non-infringement or invalidity at the trial level creates a strong record that is difficult to overturn.
• 📊 For ongoing risk management, professionals should research patent families and global litigation patterns to fully understand the scope of potential threats.

FAQ

• What was the basis for the outcome in Lowe v. Shieldmark?
  The Federal Circuit summarily affirmed the district court’s judgment for the defendant, dismissing the appeal. It awarded costs to Shieldmark but denied additional sanctions under Rule 38, stating the appeal was not “wholly frivolous” even though its outcome was “not in doubt.”
• How might this verdict affect future patent litigation strategy?
  This ruling will likely encourage accused infringers to move more aggressively for summary affirmance and costs in weak appeals. It should also motivate all litigants to perform a stricter pre-appeal viability assessment.

Start your patent research on Patsnap Eureka IP to gain competitive intelligence and inform your litigation and R&D strategies.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. The outcome of any legal matter depends on the specific facts and circumstances involved. You should consult with qualified legal counsel for advice regarding your individual situation.