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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`CLINICOMP INTERNATIONAL, INC.,
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` Case No.: 17-cv-02479-GPC (DEB)
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`ORDER AWARDING DEFENDANT
`ATTORNEYS’ FEES UNDER 35
`U.S.C. § 285
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`Plaintiff,
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`Defendant.
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`CERNER CORPORATION,
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`On February 3, 2023, the Court granted Defendant Cerner Corporation (“Cerner”)’s
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`motion for attorneys’ fees pursuant to 35 U.S.C. § 285; found this case to be “exceptional;”
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`and awarded Cerner its reasonable attorneys’ fees incurred since August 29, 2022. (Dkt.
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`No. 133.) On February 24, 2023, Cerner filed its brief in support of its request for its
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`attorneys’ fees incurred since August 29, 2022. (Dkt. No. 136.) On March 10, 2023,
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`CliniComp filed its response to Cerner’s request for attorneys’ fees. (Dkt. No. 141.) On
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`March 17, 2023, Cerner filed its reply. (Dkt. No. 149.) For the reasons set forth below,
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`the Court awards Cerner $802,334.60 in attorneys’ fees under 35 U.S.C. § 285.
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`I.
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`BACKGROUND
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`CliniComp is the owner of U.S. Patent No. 6,665,647 (“the ’647 Patent”) by
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`assignment. (Dkt. No. 1, Compl. ¶ 2.) In the present action, CliniComp alleged that Cerner
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`directly infringes claims 1, 2, 5, 10-13, 15-18, and 20-23 of the ’647 Patent by making,
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`17-cv-02479-GPC (DEB)
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`Case 3:17-cv-02479-GPC-DEB Document 153 Filed 03/22/23 PageID.4155 Page 2 of 9
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`using, selling, and/or offering to sell within the United States Cerner’s CommunityWorks,
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`PowerWorks, and Lights on Network services (collectively “the accused services”). (Dkt.
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`No. 103, Ex. 2 at 21; see also Dkt. No. 1, Compl. ¶¶ 15-16.)
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`On December 11, 2017, CliniComp filed a complaint for patent infringement against
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`Cerner, alleging infringement of the ’647 Patent. (Dkt. No. 1, Compl.) On May 16, 2018,
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`the Court granted Cerner’s motion to dismiss CliniComp’s claims for willful infringement
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`and indirect infringement as well as the relief sought in connection with these claims of
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`injunctive relief, treble damages, and exceptionality damages. (Dkt. No. 18 at 21.) On
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`June 25, 2018, Cerner filed an answer to CliniComp’s complaint. (Dkt. No. 19.)
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`On March 5, 2019, the Patent Trial and Appeal Board (“PTAB”) instituted an inter
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`partes review (“IPR”) as to claims 1-25 and 50-55 of the ’647 Patent. (Dkt. No. 30-1, Ex.
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`A.) On March 7, 2019, the Court granted a stay of the action pending completion of the
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`IPR proceedings. (Dkt. No. 31.) On March 26, 2020, the PTAB issued a final written
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`decision, determining that claims 50-55 of the ’647 Patent are not patentable in light of the
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`prior art, but that claims 1-25 of the ’647 Patent are patentable.1 (Dkt. No. 32, Ex. A at 93-
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`94.) On April 20, 2021, the Federal Circuit affirmed the PTAB’s determination that claims
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`1-25 of the ’647 Patent are patentable.2 (Dkt. No. 38-2, Ex. B at 10.) On June 24, 2021,
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`the Court granted the parties’ joint motion to lift the stay of the action. (Dkt. No. 44.)
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`Specifically, the PTAB concluded that Cerner had shown by a preponderance of the
`evidence that: (1) claims 50-52 are not patentable based on Evans; (2) claims 53 and 54 are
`not patentable based on Evans and Rai; (3) claims 50-53, and 55 are not patentable based
`on Johnson and Evans; and (4) claim 54 is not patentable based on Johnson, Evans, and
`Rai. (Dkt. No. 32, Ex. A at 93-94.) The PTAB further concluded that Cerner had not
`shown by a preponderance of the evidence: (1) that claims 1-5, 10-13, and 15-25 are
`unpatentable based on Johnson and Evans; or (2) that claims 6-9, and 14 are unpatentable
`based on Johnson, Evans, and Rai. (Id. at 93.)
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`On November 15, 2021, the PTO issued an inter partes review certificate for the
`’647 Patent, stating: “Claims 1-25 are found patentable” and “Claims 50-55 are cancelled.”
`(Dkt. No. 71-2, Ex. A at A-20–A-21.)
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`17-cv-02479-GPC (DEB)
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`Case 3:17-cv-02479-GPC-DEB Document 153 Filed 03/22/23 PageID.4156 Page 3 of 9
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`On July 23, 2021, Cerner filed an amended answer to CliniComp’s complaint. (Dkt.
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`No. 52.) On October 7, 2021, the Court issued a scheduling order for the action. (Dkt. No.
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`55.) On July 28, 2022, the Court issued a claim construction order, construing the disputed
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`claim terms from the ’647 Patent. (Dkt. No. 91.)
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`On November 15, 2022, the Court granted Cerner’s motion for summary judgment
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`of non-infringement. (Dkt. No. 120.) Specifically, the Court held that Cerner demonstrated
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`that the accused services do not infringe the asserted claims of the ’647 Patent as a matter
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`of law. (Id. at 44.) On November 16, 2022, the Court entered a judgment in the action in
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`favor of Defendant Cerner and against Plaintiff CliniComp. (Dkt. No. 121.)
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`On December 30, 2022, the Clerk of Court taxed costs in favor of Cerner in the
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`amount of $8,265.80. (Dkt. No. 131 at 3.) On February 3, 2023, the Court granted Cerner’s
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`motion for attorneys’ fees pursuant to 35 U.S.C. § 285, and the Court awarded Cerner its
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`reasonable attorneys’ fees incurred since August 29, 2022. (Dkt. No. 133 at 23.) By the
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`present briefing, Cerner requests that the Court award it $802,334.60 for its attorneys’ fees
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`incurred since August 29, 2022. (Dkt. No. 144 at 1, 11; Dkt. No. 149 at 6.)
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`II. DISCUSSION
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`Cerner requests that the Court award it $802,334.60 in attorneys’ fees under the
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`lodestar method. (Dkt. No. 144 at 1-2; Dkt. No. 149 at 6.) An award of attorneys’ fees
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`under 35 U.S.C. § 285 must be “reasonable.” Kilopass Tech., Inc. v. Sidense Corp., 82 F.
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`Supp. 3d 1154, 1164 (N.D. Cal. 2015); see SRI Int’l, Inc. v. Cisco Sys., Inc., 930 F.3d
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`1295, 1311 (Fed. Cir. 2019) (“Section 285 permits a prevailing party to recover reasonable
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`attorneys’ fees.”). “The requirement that fees awarded be reasonable is a safeguard against
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`excessive reimbursement.” IPS Grp., Inc. v. Duncan Sols., Inc., No. 15-CV-1526-CAB
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`(MDD), 2018 WL 3956019, at *1 (S.D. Cal. Aug. 17, 2018) (citing Mathis v. Spears, 857
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`F.2d 749, 754 (Fed. Cir. 1988)).
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`In calculating an attorneys’ fee award under § 285, “a district court usually applies
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`the lodestar method, which provides a presumptively reasonable fee amount by multiplying
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`a reasonable hourly rate by the reasonable number of hours required to litigate a
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`Case 3:17-cv-02479-GPC-DEB Document 153 Filed 03/22/23 PageID.4157 Page 4 of 9
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`comparable case.” Lumen View Tech. LLC v. Findthebest.com, Inc., 811 F.3d 479, 483
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`(Fed. Cir. 2016) (citing Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551, 554 (2010));
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`see also Staton v. Boeing Co., 327 F.3d 938, 965 (9th Cir. 2003) (“When a statute provides
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`for such fees, it is termed a ‘fee-shifting’ statute. Under a fee-shifting statute, the court
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`‘must calculate awards for attorneys’ fees using the ‘lodestar’ method.’”). “Ultimately, a
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`‘reasonable’ number of hours equals ‘the number of hours which could reasonably have
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`been billed to a private client.’” Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th
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`Cir. 2013) (quoting Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008)).
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`A district court should not award “fees for hours expended by counsel that were ‘excessive,
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`redundant, or otherwise unnecessary.’” SRI, 930 F.3d at 1311 (quoting Hensley v.
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`Eckerhart, 461 U.S. 424, 437 (1983)); accord Gonzalez, 729 F.3d at 1203.
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`“The fee applicant bears the burden of establishing entitlement to an award and
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`documenting the appropriate hours expended and hourly rates.” Hensley, 461 U.S. at 437;
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`see Welch v. Metro. Life Ins. Co., 480 F.3d 942, 945–46 (9th Cir. 2007) (“The party
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`seeking fees bears the burden of documenting the hours expended in the litigation and must
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`submit evidence supporting those hours and the rates claimed.”). “Once the party seeking
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`fees meets that initial burden of adequately documenting the hours requested, the burden
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`shifts to the opposing party” to challenge the accuracy and reasonableness of the hours
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`billed. Maloney v. T3Media, Inc., No. CV 14-05048-AB VBKX, 2015 WL 3879634, at
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`*4 (C.D. Cal. May 27, 2015); see Hiken v. Dep’t of Def., 836 F.3d 1037, 1045 (9th Cir.
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`2016) (“‘[T]he party opposing the fee application has a burden of rebuttal that requires
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`submission of evidence to the district court challenging the accuracy and reasonableness
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`of the hours charged or the facts asserted by the prevailing party in its submitted
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`affidavits.’” (quoting Gates v. Deukmejian, 987 F.2d 1392, 1397–98 (9th Cir. 1992)).
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`The determination of the amount of reasonable attorneys’ fees under § 285 is “‘a
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`matter that is committed to the sound discretion of a district court judge.’” In re Rembrandt
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`Techs. LP Pat. Litig., 899 F.3d 1254, 1278 (Fed. Cir. 2018) (quoting Lumen View, 811
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`F.3d at 483). In awarding fees, a district court must “explain how it came up with the
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`amount,” and that explanation “must be ‘concise but clear.’” Moreno, 534 F.3d at 1111
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`(quoting Hensley, 461 U.S. at 437); see also United Steelworkers of Am. v. Phelps Dodge
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`Corp., 896 F.2d 403, 407 (9th Cir. 1990) (“[H]ours actually expended in the litigation are
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`not to be disallowed without a supporting rationale.”). “Where the difference between the
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`lawyer’s request and the court’s award is relatively small, a somewhat cursory explanation
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`will suffice. But where the disparity is larger, a more specific articulation of the court’s
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`reasoning is expected.” Moreno, 534 F.3d at 1111.
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`In support of its fees request, Cerner explains that the undiscounted hourly rates for
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`defense counsel in this action are as follows: (1) $1,465, $1,120, and $1,055 for the three
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`partners; (2) $805 and $610 for the two associates; and (3) $495, $420, and $415 for the
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`three paralegals. (Dkt. No. 144 at 2-3.) Cerner further explains that the actual hourly rates
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`paid by Cerner are lower than this due to the benefit of a negotiated discount that Cerner
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`received from defense counsel. (Id. at 2-3.)
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`The Court finds these hourly rates to be reasonable. First, “rate determinations in
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`other cases . . . are satisfactory evidence of the prevailing market rate.” United
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`Steelworkers, 896 F.2d at 407. District courts in other complex patent cases have found
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`similar rates to be reasonable in awarding attorneys’ fees. See, e.g., Orthopaedic Hosp. v.
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`Encore Med., L.P., No. 319CV00970JLSAHG, 2021 WL 5449041, at *13 (S.D. Cal. Nov.
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`19, 2021) (approving hourly rates of up to $1,260 for partners and $1,065 for associates as
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`reasonable); NuVasive, Inc. v. Alphatec Holdings, Inc., No. 3:18-CV-347-CAB-MDD,
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`2020 WL 6876300, at *3 (S.D. Cal. Mar. 20, 2020) (approving hourly rates of $1,005 and
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`$860 for partners as reasonable); Facebook, Inc. v. Power Ventures, Inc., No. 08-CV-
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`05780-LHK, 2017 WL 3394754, at *7 (N.D. Cal. Aug. 8, 2017) (approving Orrick’s hourly
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`rates of up to $1,200 for a partner, $800 for an associate, and $430 for a paralegal as
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`reasonable); Healthier Choices Mgmt. Corp. v. Philip Morris USA, Inc., No. 1:20-CV-
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`4816-TCB, 2022 WL 870206, at *4 (N.D. Ga. Feb. 22, 2022) (approving hourly rates of
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`Case 3:17-cv-02479-GPC-DEB Document 153 Filed 03/22/23 PageID.4159 Page 6 of 9
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`up to $1,318 for partners, $935 for associates, and $450 for paralegals as reasonable).3
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`Second, “[t]he reasonableness of the requested rates is strongly supported by the fact that
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`these are the rates that counsel billed to [Cerner] and that [Cerner] has already paid.”
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`Facebook, 2017 WL 3394754, at *7; see Wi-LAN, 2022 WL 1224901, at *4 (“The Federal
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`Circuit has explicitly approved the award of attorney fees under § 285 at the rates that the
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`attorneys actually charged.” (citing SRI, 930 F.3d at 1311)). Third, that Cerner received a
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`discount on the hourly rates at issue also supports the reasonableness of the rates. See
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`Orthopaedic Hosp., 2021 WL 5449041, at *14. Fourth, “the fact that this matter is a
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`complex, high-stakes patent litigation” further supports the reasonableness of the rates. Id.;
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`see also Yufa v. TSI Inc., No. 09-CV-01315-KAW, 2014 WL 4071902, at *5 (N.D. Cal.
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`Aug. 14, 2014) (“[T]he field of intellectual property law requires specialized knowledge.”).
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`Finally, CliniComp does not challenge the reasonableness of Cerner’s hourly rates.
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`Turning to the reasonable number of hours expended, “to determine whether
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`attorneys for the prevailing party could have reasonably billed the hours they claim to their
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`private clients, the district court should begin with the billing records the prevailing party
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`has submitted.” Gonzalez, 729 F.3d at 1202. As part of its fee request, Cerner has provided
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`the Court with detailed billing records with time billed in one-tenth of an hour increments
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`and with specific narratives detailing each billed task. (See Dkt. No. 144, Bobrow Decl.
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`Ex. 1.) After reviewing these billing records, the Court finds the hours expended by
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`Although the Court cites to cases from the Northern District of California and the
`Northern District of Georgia, this is permissible because as another court in this District
`has explained: “based on the Court’s knowledge of local billing rates and of the practices
`of national law firms, large national law firms . . . do not charge different rates based on
`the jurisdiction in which a complex patent lawsuit is filed.” NuVasive, 2020 WL 6876300,
`at *3 n.1; see also Wi-LAN Inc. v. Sharp Elecs. Corp., No. CV 15-379-LPS, 2022 WL
`1224901, at *4 (D. Del. Apr. 25, 2022) (“[T]his Court remains of the view that the
`appropriate ‘market’ for assessing rates in a high-stakes patent litigation like the instant
`case is the market for national (and Delaware) counsel who litigate patent cases in
`Delaware.”).
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`17-cv-02479-GPC (DEB)
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`Case 3:17-cv-02479-GPC-DEB Document 153 Filed 03/22/23 PageID.4160 Page 7 of 9
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`Cerner’s counsel to be reasonable.
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`Although CliniComp does not challenge the total number of hours billed by Cerner’s
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`attorneys, CliniComp challenges Cerner’s requested fees on the grounds that the amount
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`reflects a disproportionately high use of partners for routine matters. (Dkt. No. 141 at 1-
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`5.) CliniComp contends that district courts have held that when a case is appropriately
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`staffed, partner time should account for no more than 30% of the total time. (Id. at 2 (citing
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`Larson v. United Nat. Foods W. Inc., No. CV-10-00185-PHX-DGC, 2013 WL 4507473,
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`at *2 (D. Ariz. Aug. 23, 2013).)4 CliniComp notes, for example, that Cerner’s partners
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`accounted for 71% of the hours expended on Cerner’s motion for summary judgment and
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`72% of the hours expended on Cerner’s motion for attorneys’ fees.5 (Id. at 3.) CliniComp
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`argues that, in light of this “top-heavy billing” by Cerner, the Court should exercise its
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`discretion and reduce Cerner’s requested fee amount by 50%, to correct a purported 82%
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`The Court notes that to support this contention, CliniComp cites to a single district
`court case that involved claims for violation of the Family Medical Leave Act and for
`disability discrimination and did not involve complex claims for patent infringement. See
`Larson, 2013 WL 4507473, at *1. Further, in that case, the district court did not broadly
`state that when a case is appropriately staffed, partner time should generally account for no
`more than 30% of the total time. Rather, the district court specifically stated “a reasonable
`fee in this case includes no more than 30% of the time at partner rates.” Id. at *2 (emphasis
`added).
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`In its brief, CliniComp asserts that achieving summary judgment on claims that a
`party considered to be meritless does not require that most of the work be done by a partner,
`and CliniComp notes that Cerner asserted that CliniComp’s claim for patent infringement
`was meritless following the issuance of the Court’s claim construction order. (Dkt. No.
`141 at 3 (citing Larson, 2013 WL 4507473, at *2.) The Court notes that although this may
`generally be true, the present case involved complex technology. Further, as explained in
`the Court’s February 3, 2023 order granting Cerner’s motion for attorneys’ fees,
`CliniComp changed its theory of infringement at least three times during the summary
`judgment stage of this case. (See Dkt No. 133 at 13-19.) A theory of infringement that
`changes three times in a few months, even if meritless, probably demands more attention
`from partners at the summary judgment stage than a meritless claim for patent infringement
`that is static. (See also Dkt. No. 149 at 2-4.)
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`17-cv-02479-GPC (DEB)
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`Case 3:17-cv-02479-GPC-DEB Document 153 Filed 03/22/23 PageID.4161 Page 8 of 9
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`overbilling by partners. (Id. at 4-5.)
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`In response, Cerner contends that its staffing decisions were reasonable and justified
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`by the demands of its clients in the legal market. (Dkt. No. 149 at 1.) Cerner contends: “It
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`is widely recognized that, for the last decade, clients have been pushing back on the use of
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`junior lawyers, particularly given the increase in associate salaries and billing rates.
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`Clients, including Cerner, find it more efficient to use more senior attorneys because they
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`get the work done in significantly less time than junior lawyers.” (Id. (citing Dkt. No. 149-
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`1, Bobrow Decl. ¶ 5).) Cerner explains that this is underscored by “the shrinking delta
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`between partner and non-partner billing rates as associate salaries increase.” (Id.) Cerner
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`further notes that the discounted hourly rates for two of its partners on this case were less
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`than or commensurate with the rates of non-partner attorneys that courts in this District
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`have found to be reasonable in other cases. (Id. at 1-2.)
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`Although the Court agrees with CliniComp that Cerner’s law firm could have better
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`utilized its associates in this case,6 Cerner’s counsel has provided reasonable explanations
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`for its staffing decisions. (See Dkt. No. 149 at 1-4; Dkt. No. 149-1, Bobrow Decl. ¶¶ 5-7.)
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`Further, the Court agrees with Cerner that the problem with CliniComp’s challenge is that
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`it fails to consider the discounted hourly rates that Cerner was paying the partners at issue.
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`In light of those discounts, Cerner was essentially paying reasonable senior associate-level
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`hourly rates for the work of two of three partners in this case. See, e.g., Orthopaedic Hosp.,
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`2021 WL 5449041, at *13 (approving hourly rates of up to $1,065 for associates as
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`reasonable); Healthier Choices, 2022 WL 870206, at *4 (approving hourly rates of up to
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`$935 for associates as reasonable); Facebook, 2017 WL 3394754, at *7 (approving
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`Orrick’s hourly rates of up to $800 for an associate). As such, the Court rejects
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`CliniComp’s characterization of Cerner’s staffing decisions as “top-heavy billing,” and the
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`The Court acknowledges that it also appears to be true that CliniComp’s law firm
`could have better utilized its associates in this case as well. (See Dkt. No. 149 at 2; Dkt.
`No. 149-1, Bobrow Decl. ¶ 8.)
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`8
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`17-cv-02479-GPC (DEB)
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`Case 3:17-cv-02479-GPC-DEB Document 153 Filed 03/22/23 PageID.4162 Page 9 of 9
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`Court rejects CliniComp’s request to reduce Cerner’s requested fee amount by 50%. See
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`also Finjan, Inc. v. Juniper Network, Inc., No. 3:17-CV-05659-WHA, 2021 WL 3674101,
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`at *4 (N.D. Cal. May 20, 2021), report and recommendation adopted by Finjan, Inc. v.
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`Juniper Networks, Inc., No. C 17-05659 WHA, 2021 WL 3140716 (N.D. Cal. July 26,
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`2021) (“In its strongest form, Finjan’s argument appears to be that Juniper could only
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`reasonably defend the case by employing a model where its lead counsel only parachuted
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`in for hearings and trial. That is not the only way to reasonably staff a case, or even
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`necessarily advisable given the benefits that experienced counsel can bring to a case.”).
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`Finally, CliniComp asserts that even if the Court finds Cerner’s hourly rates and
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`hours expended to be reasonable, the Court may make a discretionary 10% reduction to the
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`requested fees. (Dkt. No. 141 at 5.) The Ninth Circuit has explained that in determining
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`the reasonableness of a fees request, a “‘district court can impose a small reduction, no
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`greater than 10 percent—a “haircut”—based on its exercise of discretion and without a . .
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`. specific explanation.’” Gonzalez, 729 F.3d at 1203 (quoting Moreno, 534 F.3d at 1112).
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`The Court, exercising its sound discretion, declines to perform a “haircut” to Cerner’s
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`requested amount of fees.
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`For the reasons above, the Court awards Cerner $802,334.60 in attorneys’ fees under
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`III. CONCLUSION
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`19
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`35 U.S.C. § 285.
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`IT IS SO ORDERED.
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`Dated: March 22, 2023
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`17-cv-02479-GPC (DEB)
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