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Wbip, LLC v. Kohler Co.

United States District Court, D. Massachusetts

September 8, 2014

WBIP, LLC, Plaintiff,
KOHLER CO., Defendant.


NATHANIEL M. GORTON, District Judge.

Plaintiff WBIP, LLC ("WBIP") alleges that defendant Kohler Co. ("Kohler") infringes its patents directed to marine power generators. The Court has previously ruled that WBIP is entitled to reasonable attorneys' fees and costs pursuant to 35 U.S.C. § 285, which entitles the prevailing party in an exceptional patent infringement case to reasonable fees. The parties have submitted memoranda with respect to the reasonableness of WBIP's requested fees and Kohler has moved for the disallowance of certain costs claimed by WBIP. WBIP has also submitted a final, agreed-to accounting of pre-judgment interest.

For the reasons that follow, the Court will award to WBIP $1, 660, 444.69 in attorneys' fees, $20, 882.14 in costs and $423, 267 in pre-judgment interest.

I. Attorneys' Fees

WBIP seeks attorneys' fees totaling $2, 288, 050 for the work performed by three attorneys. Kohler responds that the request is excessive and that an award between $637, 053 and $955, 579 would be appropriate.

A. Legal Standard

Courts generally apply the "lodestar approach" when awarding attorneys' fees pursuant to 35 U.S.C. § 285. Agfa Corp. v. Creo Prods., Inc., No. 00-10836, 2004 WL 2387288, at *1 (D. Mass. Oct. 5, 2004) (citing Codex Corp. v. Milgo Elec. Corp. , 717 F.2d 622, 631-32 (1st Cir. 1983)). The lodestar figure is calculated by "multiplying the number of hours productively spent by a reasonable hourly rate." Torres-Rivera v. O'Neill-Cancel , 524 F.3d 331, 336 (1st Cir. 2008) (citing Hensley v. Eckerhart , 461 U.S. 424, 433 (1983)). After calculating the initial lodestar figure, Court has the discretion to adjust that figure upwards or downwards based on equitable factors such as the results obtained in the litigation. Id . (citing Hensley , 461 U.S. at 434).

B. Application

1. Hours Expended

The Court finds that the lodestar amount requested by WBIP reflects a reasonable number of hours worked on this complex, hard-fought patent litigation. Kohler's arguments for reducing the number of hours to be factored into the lodestar are, with one exception, unavailing.

First, with respect to fees incurred prior to May 15, 2013, WBIP has provided sufficient detail in its itemized statement and the hours it spent preparing for trial were, in the view of this Court, reasonable. The Court will, however, reduce by 50% the hours billed as travel time for Attorney Zeliger because WBIP has not provided an account of how much of his travel time was allocated to billable tasks. WBIP has requested $28, 247.50 in fees for 41.7 hours of travel time and therefore the Court will subtract half of that amount from its lodestar calculation.

Next, WBIP has not waived its right to request fees incurred between May, 15, 2013 and June 17, 2013 merely because it did not include them in its motion for fees filed on June 18, 2013. All of the work performed after May 15, 2013 concerned post-trial matters and it would have been presumptuous for WBIP to assume, as of June 18, 2013, that the Court would rule in its favor on those motions.

WBIP may recover fees incurred with respect to post-trial filings that were no successful. While the Court has the discretion to subtract unreasonable or unproductive time from the lodestar, a party is not required to prevail on every disputed issue during the litigation to avoid a reduced fee award. Thus, while WBIP was unsuccessful in persuading the Court to reconsider its denial of a permanent injunction, it will nevertheless be reimbursed for the $14, 590 in fees incurred in litigating that motion. The only reason that the Court gave for denying permanent injunctive relief was WBIP's limited manufacturing capacity and the Court acknowledged in its denial of the motion that it may have misapprehended the relevant facts. Thus, there was a colorable basis for the motion to reconsider even if it was ultimately unsuccessful. Similarly, WBIP is entitled to fees incurred in opposing the motion for a new trial or a remittitur, even though the Court ultimately gave WBIP a choice between accepting a remittitur or re-trying the case, because the remittitur still resulted in an award of significant damages and WBIP avoided a new trial with its attendant risks.

WBIP is also entitled to fees for time spent responding to pleadings filed by Kohler with respect to the reexamination of patents by the U.S. Patent and Trademark Office. WBIP has not sought fees incurred during the reexamination proceedings themselves and it was appropriate for counsel to respond to Kohler's argument that reexamination of the ...

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