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Judge Stark awards costs to prevailing defendant, comments on importance of technology tutorials

In Walker Digital, LLC v. Google, Inc., C.A. No. 11-318-LPS (D. Del. Apr. 12, 2016), Chief Judge Leonard P. Stark considered Defendant’s Motion for Review Taxation of Costs, where it had requested over $80K but had been awarded less than $3K by the Clerk of Court.  Chief Judge Stark granted the motion, finding the award of costs for depositions, a technology tutorial, conversion to TIFF images in production, and obtaining hearing transcripts to be an appropriate exercise of the Court’s discretion.

As a threshold matter, the Court interpreted Local Rule 54.1 as allowing such a motion by the prevailing party in a case.  Plaintiff argued it was procedurally improper as Defendant was not “the opposing party” to receiving costs, but the Court explained that Defendant “is the aggreived party with respect to the portion of the Clerk’s taxation decision to which [Defendant] has filed its motion.  In this context, then, [Defendant] is ‘the opposing party’ with respect to the Clerk’s decision – even though [Defendant] is not, of course, ‘the opposing party’ with respect to [its] own Bill of Costs.”  Id. at 5.

Also included in the decision is Chief Judge Stark’s discussion of the importance of Markman technology tutorials.  Plaintiff had argued that Defendant’s costs related to the creation of its  technology tutorial were not appropriate because Defendant had not identified how the tutorials had aided the Court.  But Chief Judge Stark, in awarding the costs, observed that “[i]n almost every patent case, the undersigned judge requires the submission of technology tutorials as they aid this Court in understanding the technological context in which particular claim construction disputes must be resolved. In every case in which technology tutorials are ordered and submitted, the Court relies on them, just as it relies on the parties’ claim construction briefing.”  Id. at 10.


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