Id. Similarly, in Badalamenti v. Dunhams, Inc., 896 F.2d 1359, 1364-65, 13 USPQ2d 1967, 1971-72 (Fed. Cir. 1990), because the district court was silent on the exceptional case issue and fee denial, we were "unable to review the decision of the district court on this issue." Recognizing that a remand was "unfortunate", we went on to eschew any suggestion that the case be found exceptional, noting that defendant's primary basis for requesting fees had disappeared and that, even if the case be found exceptional, a denial of fees remained discretionary with the district court.

This case presents a procedural question not unique to patent law; thus, the law of the Ninth Circuit applies. See Badalamenti v. Dunham's, Inc., 896 F.2d 1359, 1362, 13 USPQ2d 1967, 1970 (Fed. Cir. 1990); Panduit Corp. v. All States Plastic Mfg. Co., 744 F.2d 1564, 1574-75, 223 USPQ 465, 471 (Fed. Cir. 1984). In reviewing Rule 37 sanctions, the question is whether the district court abused its discretion.

The decided cases, and the commentators, are consentient in the view that Rule 37(b)(2)'s plain language means exactly what it says. See, e.g., Badalamenti v. Dunham's, Inc. 896 F.2d 1359, 1362 (Fed. Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 142, 112 L.Ed.2d 109 (1990); Salahuddin v. Harris, 782 F.2d 1127, 1131 (2d Cir. 1986); Laclede Gas Co. v. G. W. Warnecke Corp., 604 F.2d 561, 565 (8th Cir. 1979); 4A J. Moore J. Lucas, Moore's Federal Practice ¶ 37.03[2], at 37-62 to 37-64 (2d ed. 1991); 8 C. Wright A. Miller, Federal Practice and Procedure § 2289, at 790 (1970). In this case, therefore, the propriety of dismissing plaintiffs' complaint under Rule 37(b)(2) hinges on the answer to the following question: Did either Ward's refusal to answer the tax exemption questions during his deposition or the plaintiffs' failure to produce the Impex documents transgress "an order to provide or permit discovery," Fed.R.Civ.P. 37(b)(2), then in effect?

Similarly, with regard to substantive legal issues not within our exclusive subject matter jurisdiction, our practice has been to defer to regional circuit law when reviewing cases arising under the patent laws.See Badalamenti v. Dunham's, Inc., 896 F.2d 1359, 1362, 13 USPQ2d 1967, 1970 (Fed. Cir.), cert. denied, ___ U.S. ___ , 111 S.Ct. 142, 112 L.Ed.2d 109 (1990) (Rule 37); Kalman v. Berlyn Corp., 914 F.2d 1473, 1480, 16 USPQ2d 1093, 1098 (Fed. Cir. 1990) (Rule 21); Katz v. Lear Siegler, Inc., 909 F.2d 1459, 1461, 15 USPQ2d 1554, 1556 (Fed. Cir. 1990) (Rule 19); Refac Int'l, Ltd. v. Hitachi, Ltd., 921 F.2d 1247, 16 USPQ2d 1347 (Fed. Cir. 1990) (Rules 11, 37); Registration Control Sys. v. Compusystems, Inc., 922 F.2d 805, 807, 17 USPQ2d 1212, 1214 (Fed. Cir. 1990) (Rule 7); Solarex Corp. v. Arco Solar, Inc., 870 F.2d 642, 643, 10 USPQ2d 1247, 1248 (Fed. Cir. 1989) (Rule 26, 37); Tennant Co. v. Hako Minuteman, Inc., 878 F.2d 1413, 1416, 11 USPQ2d 1303, 1305-06 (Fed. Cir. 1989) (Rule 37); Amstar Corp. v. Envirotech Corp., 823 F.2d 1538, 1550, 3 USPQ2d 1412, 1421 (Fed. Cir. 1987) (Rule 60); Truswal Sys. v. Hydro-Air Eng'g, Inc., 813 F.2d 1207, 1209, 2 USPQ2d 1034, 1036 (Fed. Cir. 1987) (Rule 45(b)); Ashland Oil, Inc. v. Delta Oil Prods. Co., 806 F.2d 1031, 1033, 1 USPQ 1073, 1075

Section 285 is meant to "provide discretion where it would be grossly unjust that the winner be left to bear the burden of his own counsel which prevailing litigants normally bear." Badalamenti v. Dunham's, Inc., 896 F.2d 1359, 1364-65 (Fed. Cir.), cert. denied, — U.S., 111 S.Ct. 142, 112 L.Ed.2d 109 (1990) (quoting J.P. Stevens Co., Inc. v. Lex Tex Ltd., Inc., 822 F.2d 1047, 1052 (Fed. Cir. 1987) (emphasis in original)). There must be some finding of unfairness, bad faith or inequitable conduct on the part of the unsuccessful patentees.

Applying regional circuit law, this court has frequently concluded that the abuse of discretion standard governs our review in Rule 37 cases. See, e.g., Badalamenti v. Dunham's, Inc., 896 F.2d 1359, 1361-62, 13 USPQ2d 1967, 1969-70 (Fed. Cir.) (determining the district court abused its discretion in imposing sanctions under Federal Rule of Civil Procedure 37(d) when party responded to document request by objecting), cert. denied, ___ U.S. ___, 111 S.Ct. 142, 112 L.Ed.2d 109 (1990); Chemical Eng'g Corp. v. Essef Indus., Inc., 795 F.2d 1565, 1575, 230 USPQ 385, 392-93 (Fed. Cir. 1986) (determining no abuse of discretion in award of expenses and fees under Federal Rule of Civil Procedure 37(c) for refusal to admit truth of matters set forth in requests); cf. Bio-Rad Labs., Inc. v. Nicolet Instrument Corp., 739 F.2d 604, 615, 222 USPQ 654, 662-63 (Fed. Cir.) (no abuse of discretion for district court to deny motion for new trial based on abuse of discovery process), cert. denied, 469 U.S. 1038, 105 S.Ct. 516, 83 L.Ed.2d 405 (1984). Similarly, the abuse of discretion standard is used if the district court has exercised its other sanctioning powers.

EMS argues that the district court issued no factual findings as to whether this was an "exceptional case" and thus a remand was necessary to allow the court to make the requisite findings of fact and to decide whether an award of attorney fees was warranted. In support of its argument, EMS relies upon our decisions in Badalamenti v. Dunham's Inc., 896 F.2d 1359, 13 USPQ2d 1967 (Fed.Cir.1990), Fromson v. Western Litho Plate and Supply Co., 853 F.2d 1568, 7 USPQ2d 1606 (Fed.Cir.1988), and S.C. Johnson & Sons, Inc. v. Carter-Wallace, Inc., 781 F.2d 198, 228 USPQ 367 (Fed.Cir.1986), in which remand was deemed necessary for further "exceptional case" findings. Those cases, however, are distinguishable from the instant case.

Windsurfing had the burden of proving by clear and convincing evidence that BIC's infringement was willful and that the case was exceptional. State Indus., 883 F.2d at 1581; Badalamenti v. Dunham's, Inc., 896 F.2d 1359, 1364, 13 USPQ2d 1967, 1972 (Fed. Cir.), cert. denied sub. nom., Hyde Athletic Indus., Inc. v. Badalamenti, 498 U.S. 851, 111 S.Ct. 142, 112 L.Ed.2d 109 (1990). After reviewing the record, this court finds no clear error in the district court's findings of nonwillfulness and nonexceptionality.

Once a party is served with requests for production, he must respond or object within the time limits set forth in Rule 34. See N.C.G.S. 1A-1, Rule 34; see also Badalamenti v. Dunham's, Inc., 896 F.2d 1359 (Fed. Cir.), cert. denied, 498 U.S. 851, 112 L.Ed.2d 109 (1990). It is clear that plaintiff, through Brown, failed to exercise either of these options.

An abuse of discretion occurs when (1) the district court's decision is based on an erroneous conclusion of law, (2) the district court's findings are clearly erroneous, or (3) the district court's decision is clearly unreasonable, arbitrary or fanciful. Badalamenti v. Dunham's, Inc., 896 F.2d 1359, 1362 (Fed. Cir. 1990) (applying 6th Circuit law) (This case lists four facts; however, two of the factors are substantially the same.), cert. denied, 498 U.S. 851, 111 S.Ct. 142, 112 L.Ed.2d 109 (1990). In deciding whether the district court acted unreasonably, arbitrarily or fancifully, this court has announced several factors that it should consider when deciding whether the district court abused its discretion by imposing sanctions.