A recent Law360 story by Dani Kass, “Albright Denies Atty Fees For $13M Winner in Payment IP Trial,” reports that CloudofChange LLC isn't entitled to attorney fees after winning a $13.2 million jury verdict against NCR Corp. for infringement of payment processing patents, U.S. District Judge Alan Albright has ruled. The Western District of Texas judge rejected all of CoC's arguments that NCR's litigation conduct was "unreasonable" or otherwise exceptional, holding that NCR didn't actively ignore a notice of infringement and that disputes over discovery and testimony weren't outside the norm.
"All conducts that CoC alleges as 'unreasonable' are rather common litigation practices within the bounds of legal doctrines," Judge Albright wrote. "The fact that the jury ... found for one party, it does not automatically mean that the losing party's litigation positions are meritless." After a four-day trial, the jury decided in May that all asserted claims of CoC's point-of-sale patents were valid and infringed. The jurors put a $13.2 million price tag on the damages, and CoC had hoped the judge would tack on almost $2.6 million in attorney fees and some $460,000 in expert fees.
CoC's bid for fees had faulted NCR's counsel for not conferring about a discovery issue, as requested by a law clerk, but NCR had argued that the incident happened while the company was closed and as soon as it reopened, it gathered the discovery. Judge Albright noted that the parties worked it out without court intervention, and that overall it was a "garden-variety dispute." The fee attempt also claimed that NCR unilaterally canceled depositions, but Judge Albright said NCR made it clear that its witness wasn't available and offered alternative dates.