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Judge Reduces Fees in Patent Case

November 30, 2011 | Posted in : Fee Award, Fee Award Factors, Fee Jurisprudence, Fee Reduction, Fee Request, Hourly Rates, Lodestar

A recent Legal Intelligencer story, “Western District Judge Slashes Attorney Fees in Patent Case” reports that a federal judge awarded less than half of the requested attorney fees for the defendant in an infringement case, despite repeated failures by the plaintiff to comply with local patent rules.  U.S. District Court Judge Terrence F. McVerry of the Western District of Pennsylvania awarded Accuray Inc. $43,134 in attorney fees for work done by lawyers in Pittsburgh, New York, and California.  The award was less than half of the more than $107,000 in fees the company was seeking and reduced the partners’ rates by more than $150 an hour.

Three lawyers and a paralegal submitted their fees.  Madison Jellins is based in California and began her representation of Accuray in this case while she was a partner at Alston & Bird, where she charged $625 an hour.  She has since moved to Helix IP, where she charges $550 an hour.  She has 21 years’ experience.  Janice Christensen is a senior associate at Alston & Bird New York with eight years’ experience and bills $525 an hour.  In total, the attorneys and paralegals sought reimbursement of more than $107,000 for more than 211 hours worked.

In his legal analysis, McVerry relied on the court’s 2011 decision in NFL Properties LLC v. Wohlfarth, in which he had articulated the standards for fee petitions in the circuit.  The analysis includes a lodestar calculation of reasonable rates in the relevant legal community multiplied by reasonable hours.  As the hourly rate goes up, he said there should be a corresponding decrease in the amount of time required to accomplish a task because the attorney’s experience and expertise.

When it came to determining the reasonable hourly rate in Pittsburgh, McVerry said Accuray failed to submit evidence to prove the rates from the attorneys in all the locations are reasonable.  He dismissed a belated submission by Accuray of an affidavit filed in a separate, unrelated case before the court – Air Vent Inc. v. Vent Right Corp. – in which an attorney said $350 an hour was a reasonable rate for experienced patent litigators in Pittsburgh.

Because Accuray failed to meet its burden of proof, McVerry said the court was left to determine a reasonable rate.  He gave Jellins and Rydstrom a rate of $400 an hour, Christensen a rate of $250 an hour.  “These rates are comparable to the rates used in NFL Properties for an associate attorney and paralegal with similar years of experience and well within the market range identified by" the attorney in Air Vent, said McVerry.