ATLANTA — The U.S. Court of Appeals for the 11th Circuit panel has affirmed a lower court award of fees to a doctor who had claimed another doctor disparaged his patented treatment.

Judges Beverly B. Martin, Aldaberto Jordan and Douglas H. Ginsberg, who sat by designation, composed the panel. Martin delivered the opinion. 

The case revolves around a blog post that Dr. Steven Novella, a neurologist at Yale-New Haven Hospital, authored criticizing a treatment that Dr. Edward Tobinick, an internist and dermatologist, patented in which the drug etanercept is injected near the spine, according to background information in the opinion. Novella argued that this treatment and its remedies are unsupported by medical science. 

Tobinick claims the treatment alleviates spinal pain, neurological dysfunction and Alzheimer’s disease. He responded to Novella's claims by suing him under the Lanham Act for unfair competition and false advertising. 

The U.S. District Court for the Southern District of Florida ruled in that  Novella's blog post did not constitute commercial speech, a requirement under the Lanham Act, and therefore granted Novella a summary judgment. 

Novella then set forth a motion in the court requesting to recoup nearly $700,000 in legal fees from Tobinick because Tobinicks' lawyers had vexatiously multiplied the proceedings since November 2015. The court partially granted Novella's request but denied his motion for sanctions under 28 U.S.C. § 1927 because Tobinick's claim the court should not have awarded the fees was an attempt to relitigate an already decided matter. 

Novella was awarded the full fee amount requested, but only as to the amount incurred after Tobinick's order for a summary trial. He was awarded  $223,598.75, and Tobinick sought review of the fee. 

The court declined to award any fees under 28 U.S.C. § 1927 because it could not find that Dr. Tobinick's counsel acted under bad faith by entending the proceedings. 

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