The opinion of the court was delivered by: Randall R. Rader Circuit Judge
Hon. Randall R. Rader, Circuit Judge, United States Court of Appeals for the Federal Circuit, sitting by designation.
MEMORANDUM DECISION AND ORDER
On March 31, 2009, this court entered final judgment in favor of Cornell against Hewlett-Packard, awarding damages for patent infringement in the amount of $53,494,282 (Dkt. No. 1095). Cornell requests this court, pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, to enter an amended judgment that includes: (1) Cornell's Motion for Partial Fees and Costs under 35 U.S.C. § 285 (Dkt. No. 1103), and (2) Cornell's Motion for Prejudgment and Post-Judgment Interest (Dkt. No. 1102). This court held a hearing on May 6, 2009, regarding these motions. Cornell filed a Bill of Costs with the court seeking $947,719.11 and requests an award of prejudgment interest in the amount of $35,987,088 at the prime rate, compounded annually, from the date of infringement. Cornell also seeks post-judgment interest under 28 U.S.C. § 1961. Hewlett-Packard opposes the motions.
In its motion for partial fees and costs under 35 U.S.C. § 285, Cornell submits that it incurred $13.3 million in attorney fees and costs attributable to this litigation. Cornell further requests a partial award of expert witness fees in the amount of $750,000.
This court has the discretion to award reasonable attorney fees in exceptional cases.
35 U.S.C. § 285 ("[T]he court in exceptional cases may award reasonable attorney fees to the prevailing party."). However, before such an award is made, the court must first determine whether this case is "exceptional" within the context of the statute. Superior Fireplace Co. v. Majestic Prods. Co., 270 F.3d 1358, 1376 (Fed. Cir. 2001). An award of attorney fees to a prevailing party under section 285 is unique to patent law, and must be predicated upon something beyond the fact that the patent holder has prevailed. In other words, the case at hand must be truly unusual to justify an award of attorney fees.
Factors that courts have considered in determining whether a case is exceptional, within the realm of Section 285, include whether: (1) the infringing conduct was willful or intentional; (2) the losing party engaged in inequitable conduct before the Patent and Trademark Office; (3) offensive litigation tactics, including vexatious or unjustified litigation or frivolous filings, were employed; and (4) the losing party litigated in bad faith. Id. at 1377-78; Brasseler U.S.A. I, L.P. v. Stryker Sales Corp., 267 F.3d 1370, 1380 (Fed. Cir. 2001); Multiform Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1481-82 (Fed. Cir. 1998). The Federal Circuit has instructed that when "assessing whether a case qualifies as exceptional, the district court must look at the totality of the circumstances." Yamanouchi Pharm. Co., Ltd. v. Danbury Pharmacal, Inc., 231 F.3d 1339, 1347 (Fed. Cir. 2000).
The jury did not find willful infringement (Dkt. No. 1028). This court concluded that there was no inequitable conduct before the Patent and Trademark Office (Dkt. No. 1096). Reviewing the entire record, including discovery spanning five years, Hewlett-Packard did employ some marginally vexatious litigation tactics. However, as Magistrate Judge Peebles noted, discovery was "contentious and hard fought" by both sides (Dkt. No. 743 at 29). At the close of discovery, he concluded that "the playing field has been leveled" when he denied Cornell's request for sanctions. Id.
When considering an award of attorney fees, the litigation must be considered as a whole. Litigation by its nature is adversarial. Clients seek, and, in fact, deserve zealous advocacy. Taking all of the allegations of litigation misconduct as true for purposes of this motion, this court finds that actions of Hewlett-Packard's counsel did not stretch beyond the bounds of civility. This court holds all counsel involved in this litigation in high regard with respect to their advocacy and timely assistance to the court. Moreover, the parties did not violate the court's orders during trial. Weighing the totality of the circumstances, this case does not rise to the level of "exceptional" to warrant the award of attorneys' fees. As such, Cornell's motion under 35 U.S.C. § 285 is denied.
Federal Rule of Civil Procedure 54(d) provides that "costs other than attorneys' fees shall be allowed as of course to the prevailing party." The patent laws supplement this award, allowing a successful patent infringement claimant to recover "interest and costs as fixed by the court." 35 U.S.C. § 284; General Motors Corp. v. Devex Corp., 461 U.S. 648, 657 (1983) (holding that an award of prejudgment interest is generally appropriate when there is a finding of patent infringement). The question of pre-judgment interest, including both the rate to be applied and the method of compounding, is entrusted to the sound discretion of the court. Rite-Hite Corp. v. Kelley Co., Inc., 56 F.3d 1538, 1555 (Fed. Cir.), cert. denied, 516 U.S. 867 (1995); Studiengesellschaft Kohle, m.b.H. v. Dart Indus., Inc., 862 F.2d 1564, 1580 (Fed. Cir. 1988); Gyromat Corp. v. Champion Spark Plug Co., 735 F.2d 549, 556-57 (Fed. Cir. 1984). In exercising this discretion, the district court is guided by the fact that prejudgment interest is intended to place a patent owner in a position equivalent to where it would have been had there been no infringement. Underwater Devices, Inc. v. Morrison-Knudsen Co., Inc., 717 F.2d 1380, 1389 (Fed. Cir. 1983).
In this case, the jury found that Hewlett-Packard infringed several claims of the '115 patent. This court denied Hewlett-Packard's JMOL motion regarding infringement and validity, and awarded damages to Cornell. As such, Cornell is the "prevailing party" within the meaning of the statute and is entitled to taxable costs as fixed by the court.
In its opposition, Hewlett-Packard argues that Cornell's charge for trial graphics is unreasonable and should be reduced to $114,851. Trial graphics provide tremendous assistance to the sitting judge and jury. This court is not persuaded by Hewlett-Packard's argument that the graphic artists should be billed at the rate of a paralegal. The graphic artists are highly skilled artisans trained at creating highly technical demonstratives. They are not paralegals. Thus, the ...