Apportionment of Attorneys’ Fees Approved Where Plaintiff Prevailed on 2 of 11 Patents

The court awarded plaintiff attorneys' fees under 35 U.S.C. § 285 and found plaintiff's apportionment of fees based on the number of patents asserted at trial compared with the number of patents asserted during phases of the case to be reasonable. "The case was divided into three temporal phases based on the maximum number of patents at issue during each phase. The first phase was from filing . . . when as many as 11 patents were asserted. Because [plaintiff] ultimately prevailed on only the two patents asserted at trial, it limited its fee request to 2/11ths (18.2%) of the fees incurred during this phase. The second phase was . . . when no more than 7 patents were at issue. Thus it sought only 2/7ths (28.6%) of the fees incurred during this second phase. Finally, the last phase ran from . . . when [plaintiff] had limited the case to the two patents asserted at trial. For this last phase, PACT requested 2/2ds (100%) of the fees incurred. . . . The discount of the requested fees based on the number of patents asserted at any given time likely underestimates the time spent on the patents that were ultimately presented to the jury, since it is very likely that throughout each phase of the case more time was spent on the strongest claims. . . . Accordingly, the Court will accept the hours sought by [plaintiff]."

Pact XPP Technologies, AG v. Xilinx, Inc., et. al., 2-07-cv-00563 (TXED September 3, 2013, Order) (Payne, M.J.).