they failed to submit vendor invoices. Plaintiffs submitted
detailed computer records of their expenses in the original
submission, provided some additional invoices in their reply and
offered to provide more. In their reply they also reduced their
requested amount by approximately $7,600 to reflect the fact that
two attorneys traveled first class. While I accept that
reduction, I find that plaintiffs' failure to provide every
invoice does not make the essence of their request unreasonable.
Defendants object to the expenses of Dr. Fuji, Dr. Yanagisawa,
Ms. Whittaker and Dr. Dixon. I disagree. Drs. Dixon and
Yanagisawa were designated as witnesses but were not in fact
called to testify because I ruled for the plaintiffs from the
bench after defendants, who went first, rested their case.
Defendants had presented their case first since they had the
burden of proving the patent's invalidity by clear and convincing
evidence. See Yamanouchi, 21 F. Supp.2d at 370. The fact that
the plaintiffs did not in fact have to call these witnesses does
not render invalid their expense in preparing for their
appearance.*fn10 Ms. Whittaker's expenses were similarly
necessary since she was an interpreter for Dr. Yanagisawa, who
was one of the inventors of famotidine. Dr. Fuji was Yamanouchi's
in-house counsel and appeared in case it was necessary to
represent Dr. Yanagisawa. Plaintiffs requested only hotel and
travel expenses for Dr. Fuji, not his fees. I find that this
reasonable and allowable.
Defendants claim that plaintiffs' photocopying expenses are
excessive and not properly accompanied by vendor invoices. I am
not persuaded. Given the plethora of papers in my Chambers, I am
satisfied that plaintiffs spent the approximately $62
thousand*fn11 claimed on this expense, which included
dates-stamping and binding.
Given plaintiffs' limited time to respond to the defendants'
ANDA attack on famotidine (they had 45 days to file a complaint,
and Judge Baer limited discovery to six months), and noting
defendants' complaints about Yamanouchi's billing for car service
and meals for their attorneys, I observe that, under the
circumstances, transportation and meals were appropriate items. I
also award plaintiffs the cost of storage of documents for this
I do not accept defendants' objections to plaintiffs' summary
of expert witness fees and costs, which breaks down the expenses
for each witness into separate categories for: fees for trial
attendance, fees for deposition attendance, transportation
expenses incurred for trial attendance, transportation expenses
incurred for deposition attendance, hotel expenses during trial,
and hotel expenses during depositions. The plaintiffs offered, in
their reply, to provide me with actual receipts for these
expenses, but I decline this, finding that this satisfies the
"bill of costs" requirement under 28 U.S.C. § 1920.
Finally, it is appropriate for plaintiffs to be compensated for
the preparation of the attorneys' fees submissions. See Cruz v.
Local Union No. 3 of the Int'l Brotherhood of Elec. Workers,
34 F.3d 1148, 1160 n. 9 (2nd Cir. 1994). I deny prejudgment
Plaintiffs request a total of $2,336,339 in fees, and $525,682
in disbursements, for a total request of $2,862,022. I note that
I am required to award only a reasonable fee. 35 U.S.C. § 285.
Section 285 also permits the prevailing party to recover those
disbursements that were reasonable and necessary for the case.
Lam. Inc. v.
Johns-Manville Corp., 718 F.2d 1056, 1069 (Fed.Cir. 1983). I
need not consider the contractual arrangement between plaintiffs
and counsel, Blanchard, 109 U.S. at 946, nor determine
exactly the amount to be subtracted as excessive. See Carey,
711 F.2d at 1146 (courts may reduce lodestar by a percentage cut
"as a practical means of trimming fat from a fee application"). I
hereby award disbursements corrected to $400,000 for various
factors discussed above. And I reduce the attorneys' fees award
by 30% to a total of $1,635,440, to adjust for various charges I
deem to be in excess of what should be levied against an
adversary in a final reckoning. In my view this fairly addresses
and assesses the "general force" of defendants' contentions,
id., at 1142.
An attorney and a client can make any arrangement vis-à-vis
staffing of a case or the quality of the accoutrements furnished
in the course of that service, but whether a court in law and
equity can pass that along in toto to a losing adversary, that is
what discretion is for.
The foregoing is so ordered.