The opinion of the court was delivered by: Tucker, J.
Presently before this Court are Defendant All-Tag Security S.A.'s Documents in Support of Attorneys' Fees and Costs (Docs. 304 and 305), Defendant Sensormatic Electronics Corporation's Documents in Support of Attorneys' Fees and Costs (Doc. 306), and Plaintiff's Objections thereto (Doc. 307). For the reasons set forth below, Plaintiff shall pay Defendant All-Tag Security S.A.'s Attorneys' Fees and Costs in the amount of $2,432,572.77 and shall pay Defendant Sensormatic Electronics Corporation's Attorneys' Fees and Costs in the amount of $4,151,147.21.
The case giving rise to this Order is a patent infringement action
concerning a patent for disposable, deactivated resonance labels,
which are used to provide protection from theft in department stores,
supermarkets, and other businesses in the retail industry. In May
2001, Plaintiff brought suit against Defendants All-Tag Security S.A.
("All-Tag") and Sensormatic Electronics Corporation ("Sensormatic")
for alleged infringement of its U.S. Patent No. 4,876,555 ("the '555
patent"). In February 2007, the case went to trial and a jury found in
of Defendants. In an Order dated February 9, 2009 (Doc. 303), this
Court found this case to be "exceptional" under 35 U.S.C. § 285 and
ordered Plaintiff to pay Defendants their respective attorneys' fees,
expenses, and pre-judgment and post-judgment interest.*fn1
The Court further ordered Defendants to submit a bill of
attorneys' fees and expenses incurred and ordered Plaintiff
to file any objections to the bills within ten (10) days.
Here, Checkpoint is an $834 million dollar company listed on the NYSE, and its only major competitor in the United States is All-Tag, an approximately $15 million company. Checkpoint's infringement expert, Dr. Markus Zahn, did not test an All-Tag product to support Checkpoint's assertion that All-Tag infringed on its '555 patent. Dr. Zahn only examined tags from All-Tag A.G. of Switzerland, not the Actual Accused Product manufactured by All-Tag S.A. of Belgium. Furthermore, Dr. Zahn's factual assumptions were derived from his review of All-Tag's patents, rather than its actual accused products. All-Tag provided all parties with samples of the Accused Product on November 22, 2002, giving Checkpoint ample time to have the expert's infringement analysis completed. Checkpoint's Chief Engineer, Mr. Mazoki, also testified to the same. To establish infringement in a patent case, the patentee is required to compare the claims in the patent to the accused product. See, e.g., L & W Inc. v. Shertech, Inc., 471 F.3d 1311, 1315-16 (Fed. Cir. 2006); Forest Labs. Inc. v. Abbot Labs., 239 F.3d 1305, 1313 (Fed. Cir. 2001); Desper Prods., Inc. v. QSound Labs, Inc., 157 F.3d 1325, 1332 (Fed. Cir. 1998); Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir. 1995). The evidence established that Checkpoint never looked at the accused products in relation to the '555 patent. (Trial Excerpt ¶¶ 36-41, February 8, 2007.) This alone warrants an exceptional case finding. Digeo, Inc. v. Audible Inc., 505 F.3d 1362, 1367 (Fed. Cir. 2007) (bringing a "baseless or frivolous suit against an accused infringer . is a sufficient basis to require a district court to deem the case exceptional under § 285."); Eltech Sys. Corp., 903 F.2d at 810-11 (affirming a fee award where the patentee filed and pursued a patent suit without any reliable evidence of infringement, the court stated that "[w]here . the patentee is manifestly unreasonable in assessing infringement, while continuing to assert infringement in court, an inference is proper of bad faith ..").
Defendant All-Tag submitted its bill of costs and attorneys' fees (Docs. 304 and 305) on February 20, 2009. All-Tag's attorneys' fees, expenses, pre-judgment interest and post-judgment interest total $2,432,572.77. Specifically, All-Tag's bills break down as follows:
Attorneys' Fees $1, 607,506.71 Expenses $191,127.42 Pre-judgment Interest $633,578.81 Post-judgment Interest $359.83 Not included in All-Tag's total is the post-judgment rate of $35.98 per day which is still accruing.
Defendant Sensormatic submitted its bill of costs and attorneys' fees (Doc. 306) on February 23, 2009. Sensormatic's attorneys' fees, expenses, pre-judgment interest and post-judgment interest total $4,201,147.21. Specifically, Sensormatic's bills break down as follows:
Attorneys' Fees $3,148,965.65 Expenses $336,762.48 Pre-judgment Interest $805,876.50 Post-judgment Interest $778.75 Sensormatic's total figure includes a deduction of $91,236.17 representing the amount Checkpoint has already paid Sensormatic for the Clerk's taxation of costs. Not included in Sensormatic's total is the post-judgment rate of $55.63 per day which is still accruing.
On March 6, 2009, Plaintiff filed Objections to Defendants' All-Tag and Sensormatic Bills of Attorneys' Fees and Costs (Doc. 307). Plaintiff admittedly "does not challenge the specific rates of Defendants' counsel or the reasonableness of the time spent on various particular tasks." (Pl. Objections 1.) Instead, Plaintiff raises four (4) objections to Defendants' petitions:
(1) the conduct allegedly supporting the "exceptional case" finding does not justify anything more than a nominal award of attorneys' fees; (2) the Court should exclude legal fees and expenses incurred for matters on which Defendants did not prevail; (3) the Court should exclude legal fees and expenses filed by Defendant Sensormatic that were not related to any work or actual tasks counsel performed in the case (i.e., fees incurred prior to case filing, fees without descriptions of work, and a "litigation success" bonus); and (4) the Court should exclude legal fees and expenses filed by Defendant All-Tag that All-Tag did not actually incur, but rather, were incurred by a third party.
Under 35 U.S.C. § 285, the court, in exceptional cases, may award reasonable attorney fees to the prevailing party. The purpose of the statute is "to compensate the prevailing party for its monetary outlays in the prosecution or defense of the suit." Central Soya, 723 F.2d at 1578. Section 285 serves as a deterrent to "improper ...