A recent NLJ story, “$6M in Attorney Fees Awarded to Chicago Board Options Exchange” reports that Fish & Richardson attorneys already helped Chicago Board Options Exchange Inc. beat back a patent infringement case from a rival exchange. Now, they’ve won their client more than $6 million in attorney fees.
U.S. District Judge Joan Lefkow in Chicago awarded payment to be made by International Securities Exchange LLC to CBOE for the entirety of what Fish & Richardson had asked, $6,069,266.81.
Two years ago she ruled the fees were warranted after the case filed in 2006 became “exceptional” in 2012 when International Securities continued to litigate following an adverse ruling by the U.S Court of Appeals for the Federal Circuit.
“It’s great vindication for what has been our view of the merits of this case for years, a view that’s been shared by the Federal Circuit and district court for years,” said Fish & Richardson partner Michael Zoppo, who represented CBOE.
The drawn-out litigation began in 2006 when International Securities brought a patent infringement claim in the U.S. District Court for the Southern District of New York alleging CBOE infringed its patent on an automated exchange, the beating heart of today’s electronic markets. International Securities sought $1 billion in damages.
The case was transferred to the Northern District of Illinois and CBOE won a summary judgment of noninfringement in 2011. The case involved a dispute over whether CBOE’s “Hybrid” trading system, which combines electronic order matching with open-outcry trading, constituted an “automated exchange.”
In 2012, CBOE also prevailed on appeal to the Federal Circuit, which affirmed the summary-judgment ruling. The $6 million in attorney fees began accumulating after that appeal.
Shortly before a trial following that appeal, International Securities consented to an adverse judgment in the case, Zoppo said. The company again appealed to the Federal Circuit, which in 2014 affirmed the lower court ruling.
Fish & Richardson asked for attorney fees in 2014. In awarding them, Lefkow wrote, “[International Securities’] litigation conduct in the face of the weakness of its infringement claims stands out from most other patent cases to which this court has been assigned. As such, the case became ‘exceptional’ after the May 2012 decision of the Federal Circuit.”
Zoppo said Fish & Richardson’s work postappeal made up the majority of the fees. Schiff Hardin served as local counsel.
The fee amount will grow slightly, as the court allowed CBOE’s attorneys to enter its costs after briefing the court on the amount of the fee award.
“The lesson here for patentees is you need to re-evaluate the merits of your case every time the court speaks on it,” Zoppo said. “And here, the Federal Circuit spoke very strongly on the interpretation of [International Securities Exchange’s] patent and ISE refused to listen.”