Despite Finding of Exceptional Case, Plaintiff’s Failure to Produce Invoices Warrants Denial of Attorney Fee Award

Although the court found that the case was exceptional under 35 U.S.C. § 285, it awarded plaintiff $0 in attorney fees because plaintiff failed to provide sufficient documentation of its claimed fees. "Despite three separate opportunities in its motion for attorneys’ fees, reply, and sur-surreply, [plaintiff] has not documented the work counsel performed in a manner that would allow the court to make its lodestar calculations. Instead, [plaintiff] basically asks the court to take its word for it in terms of what constitutes a reasonable amount of fees and costs. Although the court continues to believe this case was 'exceptional' within the meaning of 35 U.S.C. § 285, [plaintiff] has not met its burden. . . . Further, [plaintiff's] offer to allow in camera review is not sufficient. Opposing counsel has the right to challenge the basis for a fee award, and the court is entitled to opposing counsel’s views. . . . [Plaintiff] argues that it is precluded from producing invoices with descriptions of the work performed because such descriptions are protected by attorney-client privilege. . . . Not only does the case law not support its argument, but [plaintiff] filed motions to seal its motion, reply, and sur-surreply, which should have tempered any privilege concerns."

Novartis Corporation v. Webvention Holdings LLC et al, 1-11-cv-03620 (MDD June 7, 2016, Order) (Blake, J.)