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Judge Andrews Provides Guidance on Calculation of Exceptional Case Award

As previously reported here, Judge Andrews granted a motion for attorneys’ fees and costs under Section 285 and the Supreme Court’s Octane Fitness decision. Judge Andrews ordered the parties to make further submissions of “supporting documentation necessary to justify their fees as well as a brief explanation of those documents.” Having received those submissions from the parties, Judge Andrews determined last week that the defendants were entitled to a substantial portion of the fees they sought. Chalumeau Power Sys. LLC v. Alcatel-Lucent USA Inc., et al., C.A. No. 11-1175-RGA, Memo. Or. at 1-4 (D. Del. Nov. 6, 2014). Under the Lodestar approach, Judge Andrews determined that the “forum rate” for the case “must be governed by the rate for Delaware intellectual property attorneys” and that the “limited exception to the forum rule cannot apply because a number of Delaware attorneys can, and do, capably litigate patent matters.” Id. at 3.

Judge Andrews therefore concluded that “attorneys’ fees and expenses should be governed by the prevailing Delaware market rates for patent litigation” and that the calculation should not be adjusted up or down because these prevailing market rates reflect the “specialized skill that patent litigators possess, as argued by Defendants.” Id. His Honor was “not convinced that Defendants have demonstrated that there is an exceptional circumstance with respect to the result obtained or the amount involved” sufficient to justify an adjustment, nor should the rates “be adjusted downward simply because Defendants did not win on a dispositive motion or at trial.” Id. at 3-4. Finally, Judge Andrews rejected the plaintiff’s argument that fees prior to the Court’s granting of Defendants’ motion to amend to assert a licensing defense were unnecessary: “Because the licensing agreement predates the litigation, and this Court determined the licensing defense was not untimely, it is not clear why the recovery should exclude fees and expenses from before [the Court’s determination]. Defendants had to litigate the case until they learned of the licensing defense. It makes no sense (and perhaps that is why the argument is limited to a footnote) to say that defending the case was not reasonably necessary.” Id. at 4.

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