Case 1:17-cv-02097-RBJ Document 308 Filed 08/13/21 USDC Colorado Page 1 of 15
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`REALTIME ADAPTIVE STREAMING, LLC
`CIVIL ACTION NO. 1:17-CV-02097
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`Plaintiff,
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`v.
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`SLING TV L.L.C., et al.
`PATENT CASE
`Defendants.
`DEFENDANTS’ MOTION TO FIND THIS CASE EXCEPTIONAL
`UNDER 35 U.S.C. § 285 AND FOR FEE SHIFTING OF ATTORNEYS’ FEES
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`I.
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`INTRODUCTION
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`Pursuant to Federal Rule of Civil Procedure 54(d)(2) and 35 U.S.C. § 285, Defendants—
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`the prevailing parties—respectfully request this Court: (1) find this case to be exceptional; and (2)
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`award Defendants their attorney fees incurred litigating this case after the stay was lifted, in the
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`amount of $5,075,519.1
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`Throughout this case, Defendants steadfastly maintained that the asserted claims of the
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`’610 patent are invalid for claiming ineligible subject matter. Realtime’s refusal to re-evaluate its
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`claims when Realtime knew or should have known of the eligibility problem with the ’610 patent
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`significantly increased Defendants’ costs. Thus, this Court should find this case exceptional and
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`order fee shifting, just like the Central District of California did in Realtime’s case against Netflix.
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`II.
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`FACTS AND TIMELINE
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`On December 6, 2017, Defendants moved to dismiss the amended complaint, Dkt. No. 32,
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`for claims covering patent-ineligible subject matter. Dkt. 47 at 1. Specifically, Defendants argued,
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`“Realtime’s asserted patents claim the well-known and abstract concept of selecting a compression
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`scheme based on characteristics of the data being compressed.” Id. at 2. During the hearing, the
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`1 Defendants provide a “fair estimate” of the amount sought. Rule 54(d)(2)(B)(iii). This motion is
`supported with affidavits (Exs. 1, 2), “a summary of relevant qualifications and experience” for
`each person for whom fees are claimed, “a detailed description of the services rendered, the amount
`of time spent, the hourly rate charged, and the total amount claimed.” D.C.COLO.LCivR 54.3.
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`Court expressed doubts about the eligibility of the ’610 patent:
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`Maybe this is just an abstract concept. This doesn’t sound like something you
`would patent. It doesn’t sound like its technology. It just sounds like an idea.
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`Mar. 7, 2018 Hrg. Tr. at 9:9-14. At Realtime’s urging, the Court chose to perform claim
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`construction before deciding eligibility. Id. at 14:14-15 (“[W]e need to get these terms defined
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`and then see where we are.”) The Court construed claim terms, including the term “throughput of
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`a communication channel,” on January 11, 2019, Dkt. 151, and stayed the case shortly thereafter
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`for inter partes review (which cannot decide § 101 issues). Dkts. 162, 167.
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`Concurrently, two other district courts held that Realtime’s nearly identical claims from
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`the ’535 patent were unpatentable under § 101. Realtime Adaptive Streaming, LLC (“RAS”) v.
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`Google, LLC, No. 2:18-cv-03629, Dkt. 36 (C.D. Cal. Oct. 25, 2018); RAS v. Netflix, Inc., No. 17-
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`1692, Dkt. 48 (D. Del. Dec. 12, 2018) (“Netflix”) (report & recommendation). In addition, the
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`Federal Circuit also held that selecting a compression technique and converting data between
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`formats are patent-ineligible abstract ideas. Adaptive Streaming Inc. v. Netflix, Inc., 836 F. App’x
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`900, 901 (Fed. Cir. 2020).
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`At Realtime’s urging, the Court lifted the stay on January 15, 2021. Dkt. 179. Shortly
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`thereafter, Defendants wrote to Realtime’s counsel to “place Realtime and its counsel on notice
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`regarding the significant financial liability that Realtime and its counsel face [including under] 35
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`U.S.C. § 285, if Realtime continues to pursue this meritless litigation.” Ex. 3 at 1. In the letter,
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`Defendants highlighted the baselessness of asserting the ’610 patent. Id. Defendants explained
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`that in “both the District of Delaware and the Central District of California, numerous claims of
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`the ’535 patent—the parent patent to the ’610 patent—were held patent ineligible under 35 U.S.C.
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`§ 101” and that “[e]ven a casual comparison of the ’610 patent asserted claims to the now invalid
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`claims of the ’535 patent reveals that the ’610 asserted claims are likely to suffer the same
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`ineligibility finding.” Id. at 4. Defendants also explained that the Federal Circuit’s Adaptive
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`Streaming opinion showed “there can be no objective basis for continuing to litigate [the ’610
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`patent] against Defendants . . . .” Id.
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`Realtime brushed off Defendants’ letter, seeking to justify its claims by mischaracterizing
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`the record and case law. Ex. 4. Realtime stated that “DISH moved to dismiss under § 101 and the
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`Court denied that motion. Thus, you are threatening fees on an issue DISH lost on.” Id. at 1. In
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`fact, as discussed above, the Court merely accepted Realtime’s request to decide the issue after
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`claim construction. Realtime also claimed that “contrary to your false assertion—the Central
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`District of California issued an order upholding the patent-eligibility of the related ’535, ’046, and
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`’477 patents [which] strongly supports the validity of the ’610 patent.” Id. at 5. But as Defendants
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`wrote to Realtime, see id. at 4, and as the Court later agreed in its order granting summary
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`judgment, Dkt. 305 at 11–12, Realtime’s position was unsupported.
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`Realtime’s response also dodged Defendants’ warnings about the Netflix and Adaptive
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`Streaming opinions, asserting that Defendants “resort to misdirection by pointing to wholly
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`unrelated cases not involving patents/claims conceived by the Realtime inventors.” Ex. 4 at 6.
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`However, these cases strongly evidenced that the ’610 patent was ineligible. See Dkt. 305 at 4.
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`Realtime’s blind pursuit of its claims—despite all indications they were baseless—forced
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`Defendants to expend millions of dollars defending themselves from a case Realtime should have
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`dropped before asking to lift the stay. Following discovery, Defendants filed for summary
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`judgment that the ’610 patent was ineligible, relying on the same arguments Defendants informed
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`Realtime about months earlier. Dkt. 234. The Court granted Defendants’ motion, finding that “as
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`in the Adaptive Streaming, Google, and Netflix cases, . . . the plaintiff has not come forward with
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`evidence that shows a genuine dispute about a fact that is material to the resolution of the case.”
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`Dkt. 305 at 14. The Court explained that “Realtime focuses primarily on the term ‘throughput of
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`a communication channel’ but that “[t]he absence of implementation details is evident on the face
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`of the patent” and that Realtime did “not come forward with any evidence that raises a genuine
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`dispute of material fact about whether consideration of the number of pending transmission
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`requests was a new or inventive concept.” Id. at 10, 14. The Court further recognized that several
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`of Realtime’s arguments were “conclusory” or “missing [] an explanation.” Id. at 12.
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`A timeline of events relevant to this motion is illustrated below:
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`III. LEGAL STANDARD
`35 U.S.C. § 285 instructs that “[t]he court in exceptional cases may award reasonable
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`attorney fees to the prevailing party.” Courts determine if a case is exceptional on a case-by-case
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`basis considering the totality of the circumstances. Octane Fitness, LLC v. ICON Health &
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`Fitness, Inc., 572 U.S. 545, 554 (2014). There is “no precise rule or formula for” determining
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`whether a case is exceptional. Biax Corp. v. Nvidia Corp., 626 Fed. App’x 968, 970-71 (Fed. Cir.
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`2015) (citing Octane Fitness, 572 U.S. at 554). Instead, an exceptional case is one that “stands
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`out from others with respect to the substantive strength of a party’s litigating position . . . or the
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`unreasonable manner in which the case was litigated.” Id. Post-Octane Fitness, courts routinely
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`award attorneys’ fees where the asserted patent clearly lacked subject matter eligibility. See
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`Inventor Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1379 (Fed. Cir. 2017)
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`(affirming fees where there was “no uncertainty or difficulty in applying the principles set out in
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`Alice to reach the conclusion that the [] patent’s claims are ineligible”).
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`IV. ARGUMENT
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`Realtime’s unreasonable litigation strategy, coupled with its exceptionally weak merits
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`positions, make this case exceptional. While Realtime’s claims were always flawed, its claims
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`became untenable before Realtime requested the stay be lifted. Further, Realtime’s litigation
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`conduct needlessly prolonged and multiplied the proceedings at great expense to Defendants.
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`Defendants are the prevailing party, Dkt. 305 (“[a]s the prevailing party defendant is awarded . . .
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`costs”), and Realtime’s conduct leaves no doubt this case is exceptional.
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`A. Realtime’s Claims Were Exceptionally Weak
`1. Realtime’s Arguments Were Untenable In Light of the Cases Holding the
`Related ’535 Patent Claims Ineligible
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`Realtime’s claims have always been exceptionally weak, but the weakness of its claims
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`became abundantly clear before Realtime demanded that the Court lift the stay, in spite of the
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`pending reexamination and substantial new question of patentability declared by the Patent Office.
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`The law requires that a plaintiff reevaluate its case at all stages to avoid needless waste of
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`resources. See Highmark, 572 U.S. at 561; see also Highmark, Inc. v. Allcare Health Mgmt. Sys.,
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`Inc., No. 4:03-CV-1384, 2015 WL 6777377, at *2 (N.D. Tex. June 23, 2015) (reaffirming on
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`remand that a case was exceptional in part because the losing party “maintained its infringement
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`claims well after such claims had been shown by its own experts to be without merit and for the
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`express purpose of maintaining leverage”). In particular, a plaintiff must withdraw its case when
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`arguments as to the asserted patent’s eligibility are “especially weak” based on decisions finding
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`related patents ineligible. Ameranth, Inc. v. Domino’s Pizza, Inc., No. 12CV0733, 2021 WL
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`409725, at *4 (S.D. Cal. Feb. 5, 2021), reconsideration denied, 2021 WL 1853553 (S.D. Cal. May
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`10, 2021). If the plaintiff fails to do so, as Realtime did here, the case is exceptional.
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`In Ameranth, the Court agreed that the plaintiff’s “litigation position on the validity of the
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`[asserted] [p]atent was especially weak after” related patents were held invalid for claiming
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`ineligible subject matter. 2021 WL 409725, at *4 (discussing Apple, Inc. v. Ameranth, Inc., 842
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`F.3d 1229, 1245 (Fed. Cir. 2016)). The court reasoned that after the determination invalidating
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`the related patents under § 101, “no reasonable patent litigant would have believed the claims in
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`the related patent were viable.” Id. at *6. The Ameranth court cited with favor a different court’s
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`exceptional case finding on similar facts involving an earlier patent ineligibility ruling on a related
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`patent. See Kindred Studio Illustration & Design, LLC v. Elec. Commc’n Tech., LLC, No. 2:18-
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`CV-07661, 2019 WL 3064112, at *9 (C.D. Cal. May 23, 2019).
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`As in Ameranth and Kindred, Realtime’s litigation position on the validity of the ’610
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`patent was especially weak at the time that Realtime urged the Court to lift the stay in this case.
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`Two separate courts determined that certain claims of Realtime’s related ’535 patent were
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`ineligible (and, as discussed in the next subsection, the Federal Circuit found nearly identical
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`technology to be unpatentable). Yet Realtime never properly reevaluated its ’610 patent claims in
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`light of these holdings. If it had, it would have determined it could not reasonably argue that the
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`asserted ’610 patent claims covered patent eligible subject matter.
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`Instead of taking a careful look at the validity of the ’610 patent, when Defendants’ § 285
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`letter first raised these (and the Federal Circuit’s) ineligibility findings with Realtime, it responded
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`with misdirection (largely repeated in opposition to Defendants’ summary judgment motion).
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`First, Realtime asserted that this Court ruled at the motion to dismiss stage that the ’610
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`patent covered patent eligible subject matter. Ex. 4 at 1. However, as Realtime knew, the Court
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`merely deferred eligibility consideration until after claim construction, at Realtime’s urging. See
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`Ex. 5 (Mar. 7, 2018 Hrg. Tr.) at 14:12-15 (“The Court at this point very early in the case is satisfied
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`with the merits of Judge Schroeder’s view, and that is we need to get these terms defined and then
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`see where we are.”). And when it came, the claim construction decision did nothing to save
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`Realtime’s claims. “[A]n infringement lawsuit which was substantively weak when it was filed
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`can become exceptional when claim construction renders the claims therein baseless.” Innovation
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`Scis., LLC v. Amazon.com, Inc., No. 1:16-CV-00861, 2020 WL 4934272, at *2 (E.D. Va. Feb. 18,
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`2020), aff'd, 842 F. App’x 555 (Fed. Cir. 2021). The court in Innovation explained: “the Markman
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`order notified Innovation that the [patent-in-suit] was legally insufficient” because claim
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`construction “caused the patent to claim a result without claiming either ‘any new or improved
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`technology for achieving the result’ and without explaining ‘how’ the result is accomplished.” Id.
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`Here, as in Innovation, claim construction confirmed Realtime’s claims were “baseless” and
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`continued litigation was “unreasonable.” See id.; see also Dkt. 151 at 2. Specifically, the claim
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`construction order simply confirmed Defendants’ position that the ’610 patent is directed to the
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`abstract idea of selecting a compression method. See Dkt. 151 at 2. In essence, the claim
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`construction process that Realtime so fervently urged as a basis for denying Defendants’ motion
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`to dismiss for lack of patent eligibility resulted in no change to the eligibility status of the asserted
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`claims. Likewise, this Court found in the summary judgment order that “[m]ost importantly,
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`neither the claim nor the reference to the [construed] term “throughput of the communication
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`channel” in the Specification explains how the system tracks the number of pending transmission
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`requests to determine throughput of the communication channel.” Dkt. 305 at 11.
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`Second, Realtime argued that the Google court’s holding “strongly supports the validity of
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`the ’610 patent.” Ex. 4 at 5. However, as the Court explained, Realtime’s attempt to rely on
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`“throughput of a communication channel” in the ’610 patent was a distinction without a difference
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`and Realtime’s argument that “the ’610 patent’s claims are more like the claims in Realtime’s ’046
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`and ’477 patents and claims 1-14 of the ’535 patent that were not dismissed” was nothing more
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`than a “conclusory statement.” Dkt. 305 at 11, 12.
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`Third, Realtime did not even bother distinguishing Netflix when it responded to
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`Defendants’ letter. As the Court noted in its order, Realtime’s attempt to discredit Netflix as
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`incorrect was based on “a conclusory statement that lacks explanation.” Dkt. 305 at 12.
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`In sum, Realtime’s failure to reasonably reevaluate its case in light of Google and Netflix
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`renders this case exceptional.
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`2. Realtime’s Arguments Were Untenable In Light of the Federal Circuit’s
`Adaptive Streaming Opinion and Similar Cases Holding Encoding and
`Compression Claims Ineligible
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`There is more. In addition to analyzing decisions impacting related patents, plaintiffs must
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`also assess the law as to unrelated but analogous claims to determine whether it can reasonably
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`maintain its patent eligibility arguments. See My Health, Inc. v. ALR Techs., Inc., 2017 WL
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`6512221, at *4 (E.D. Tex. Dec. 19, 2017). For example, in My Health, Inc., the court found a case
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`exceptional where claims similar to those asserted here “ha[d] universally been found to be
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`unpatentable under Alice.” Id. The court explained that “[b]y the time [the plaintiff] filed its 2016
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`lawsuits, guidance from the Federal Circuit regarding claims in this category had mounted to a
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`level that would give any litigant a reasonably clear view of § 101’s boundaries.” Id.
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`As in My Health, after the stay was lifted, Realtime faced “numerous cases invalidating
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`claims directed to” data encoding and compression, including the Federal Circuit’s Adaptive
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`Streaming opinion, which should have led Realtime to withdraw its case. Defendants’ letter to
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`Realtime put it on notice of Adaptive Streaming. See Dkt. 234 at 8–9. Adaptive Streaming collects
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`case law holding that data encoding and compression are ineligible for patenting as abstract ideas.
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`Id. In response, Realtime deflected, arguing that Adaptive Streaming was irrelevant because it was
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`a “wholly unrelated case” and did not involve “patents/claims conceived by the Realtime
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`inventors.” Ex. 4 at 6; see also Dkt. 267 at 12.
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`Turning back to My Health, that court further noted that “numerous cases invalidating
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`claims directed to information collection and analysis, such as the [asserted] patent claims, stood
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`in stark contrast to” cases like Enfish, LLC v. Microsoft Corporation, 822 F.3d 1327 (Fed. Cir.
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`2016), which found a “‘specific improvement to the way computers operate’ patent-eligible.” Id.
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`Again, like in My Health, the law Realtime faced clearly delineated ineligible claims directed to
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`encoding and compression—like the ’610 patent—from computer-improvement claims allowed
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`under Enfish. Thus, Realtime could not reasonably distinguish the ’610 patent claims.
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`Realtime’s attempts to avoid Adaptive Streaming because it was non-precedential cannot
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`save it from exceptionality. Dkt. 305 at 6. As the Court noted, Adaptive Streaming is persuasive
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`authority and Realtime pointed to no reason why it could not inform an eligibility analysis,
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`especially since it relies upon prior decisions holding encoding and compression claims ineligible.
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`Id; see also My Health, No. 216CV535, 2017 WL 6512221, at *4 (E.D. Tex. Dec. 19, 2017) (citing
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`SmartGene, Inc. v. Adv. Biological Labs., 555 Fed. Appx. 950 (Fed. Cir. 2014) (“[a]lthough
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`SmartGene was an unpublished opinion, it was representative of numerous precedential opinions.
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`. . .”). As the My Health court held for the Federal Circuit’s non-precedential SmartGene opinion,
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`the fact that Adaptive Streaming is non-precedential cannot avoid an exceptionality finding.
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`In sum, this case is exceptional because when the stay was lifted there was “no uncertainty
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`or difficulty in applying the principles set out in Alice to reach the conclusion that the [’610]
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`patent’s claims are ineligible.” Inventor Holdings, 876 F.3d at 1379.
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`B. The Need for Deterrence Is High
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`A grant of fees here is also necessary “to advance considerations of . . . deterrence.” Octane
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`Fitness, 572 U.S. at 554, n.6; see also Commil USA, LLC v. Cisco Sys., Inc., 575 U.S. 632, 647
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`(2015) (section 285 “safeguards” against litigants that “use patents as a sword to go after
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`defendants for money, even when their claims are frivolous.”).
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`1. There Is a Need to Deter Realtime from Pursuing Wasteful Litigation
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`An exceptional case finding will deter Realtime from pursuing baseless claims in future
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`cases. Realtime is a serial litigant. A search of Realtime Adaptive Streaming L.L.C. and its
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`affiliate Realtime Data L.L.C. reveals 145 dockets identifying them as plaintiffs. Ex. 6. In
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`addition, Realtime is a sophisticated, patent-attorney-run litigant that routinely works in concert
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`with the Russ August & Kabat firm to monetize patents. For example, attorney Gerald Padian
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`runs Realtime as well as other similar patent assertion entities. See Ex. 7 (press release regarding
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`Solas OLED patent assertion entity); see also Ex. 8 (Padian LinkedIn Profile). Thus, Realtime
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`cannot excuse its egregious behavior in this case by feigning ignorance of the law.
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`The core of Realtime’s business model is licensing patents. Realtime brings litigation in
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`federal courts (typically without pre-suit licensing discussions), and attempts to extract settlements
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`through the risk of exorbitant damages awards. In this case, it sought $42 million dollars in
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`damages (including damages periods when the Accused Products were unquestionably licensed).
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`It also leveraged litigation costs imposed upon the Defendants to incentivize taking a license to
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`the ’610 patent. Realtime did so by making this litigation as complex and expensive as possible.
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`Setting aside the fact that the wrong Realtime entity (Realtime Data) first sued the
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`Defendants in Texas with patents it did not own, one way Realtime complicated this case was by
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`refusing to disclose its legal theories or purposefully hiding them under mountains of contentions
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`and expert reports. Realtime did so to increase the time necessary to respond—a tactic that was
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`undoubtedly successful. Realtime also refused to disclose its damages case, including fundamental
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`information required by Rule 26, such as “a computation of each category of damages” claimed
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`by Realtime. Ex. 9 (Feb. 26, 2021 Hrg. Tr.) at 25:1-28:1; see also Fed. R. Civ. P. 26(a)(1)(A)(iii).
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`Realtime’s behavior forced Defendants to raise the issue with the Court, which ruled that Realtime
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`violated its discovery obligations and had to disclose its damages case that day. Id. at 27:15-25.
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`Similarly, Realtime refused to narrow its case and maintained its twelve infringement
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`claims for the duration despite assurances to this Court that it would reduce its claims. Ex. 10
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`(July 16, 2021 Hrg. Tr.) at 18:12-21 (“I’m going to take your word for it that you will be responding
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`promptly and fully to [Defendants’] invitation to try to reduce these claims”). The closest it came
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`to reducing claims was an email to the Court on July 30, 2021 with excuses and suggestions that
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`it might later identify claims for trial. Ex. 11 (“Realtime has been discussing this latest proposal
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`internally and expects to respond today.”). Still, it never identified the subset of claims it would
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`pursue at trial, forcing Defendants to prepare for trial against every claim raised in the case.
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`A third way Realtime drove up costs to incentivize taking a license over defending from
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`the claims on the merits was by serving over 600 pages of infringement claim charts and refusing
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`to explain whether its case was based on direct infringement or one of various indirect liability
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`theories. Indeed, even at the trial preparation conference, Realtime could not commit. Id. at 29:13-
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`30 (“You’re going to have to figure out how you think they really did infringe. Was it direct
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`infringement? Was it equivalence? Was it something else?”). In fact, despite representing to the
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`Court its contentions were complete, Realtime waited until its 431-page infringement expert report
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`to disclose two additional infringement theories. Here again, Realtime forced Defendants to spend
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`significant sums to defend against the late-disclosed infringement theories with additional
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`deposition time, further rebuttal expert opinions, and significant legal vetting—efforts culminating
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`in a motion to strike. Dkt. 242 at 1-4 (moving to strike Dr. Mitzenmacher’s previously-undisclosed
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`infringement theories and quoting the February 26, 2021 hearing).
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`A fourth way Realtime drove up costs was by claiming damages for time when EchoStar,
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`then a DISH vendor, owned the accused functionality. Dkt. 240 at 11-13. EchoStar took a license
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`in 2019, yet Realtime still demanded damages—from DISH—for EchoStar’s period of ownership.
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`Id. Realtime sought to use the anvil of an overly-inflated $42 million damages claim to pressure
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`Defendants into taking a license. Realtime’s tactics imposed significant unnecessary costs on
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`Defendants to prepare its license and exhaustion defense theories for the bench trial.
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`In fact, this litigation is not the first time Realtime’s conduct has merited attorneys’ fees.
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`On November 23, 2020—shortly before this Court lifted the stay—the Central District of
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`California held that Realtime’s conduct in the Netflix litigation was exceptional and shifted fees to
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`Realtime. RAS v. Netflix, Inc., No. CV 19-6359, 2020 WL 7889048, *6 (C.D. Cal. Nov. 23, 2020)
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`(“Whether Realtime knew or should have known that its claims were baseless . . . is . . . one which
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`this Court would be inclined to find tips over into the baseless range.”).
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`2. Plaintiffs Should be Deterred from Asserting Ineligible Patent Claims
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`The need for deterrence is particularly applicable here, as fees would deter Realtime and
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`future litigants from abusing the judicial system by improperly assuming that § 101 is so undefined
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`or malleable that they can disregard strongly adverse case law and pursue meritless claims. Other
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`courts recognize the need for deterrence where a plaintiff asserts claims that are clearly ineligible
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`under § 101. For example, in Inventor Holdings, the Federal Circuit concluded that a district court
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`“acted within the scope of its discretion in finding [the] case to be exceptional based on the
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`weakness of [plaintiff’s] § 101 arguments and the need to deter similarly weak arguments in the
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`future.” Inventor Holdings, 876 F.3d at 1377 (emphasis added). The Federal Circuit rejected the
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`plaintiff’s excuse that “as a general matter that it was and is sometimes difficult to analyze patent
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`eligibility under the [Supreme Court’s] framework” because “there [was] no uncertainty or
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`difficulty in applying the principles set out in Alice” to the claims at issue. Id. at 1379.
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`Here, like in Inventor Holdings, “there [was] no uncertainty or difficulty in applying the
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`principals set out in Alice,” especially given the Google, Netflix, and Adaptive Streaming decisions.
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`Id. An exceptional case finding would signal defendants to stand on their rights when facing
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`meritless claims. Cf. Kirtsaeng v. John Wiley & Sons, 136 S. Ct. 1979, 1986 (2016) (“When a
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`litigant . . . is clearly correct, the likelihood that he will recover fees from the opposing (i.e.,
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`unreasonable) party gives him an incentive to litigate the case . . . .”). And like in eDekka, an
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`Case 1:17-cv-02097-RBJ Document 308 Filed 08/13/21 USDC Colorado Page 14 of 15
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`exceptionality finding would encourage plaintiffs with litigation-based business models—like
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`Realtime’s—to avoid advancing “insupportable arguments on behalf of an obviously weak
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`patent,” while encouraging those plaintiffs to “engage[] in a reasonable and thorough . . .
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`investigation regarding the § 101 standard and relevant authority” before and during a lawsuit.
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`eDekka LLC v. 3balls.com, Inc., 2015 WL 9225038, at *2-4 (E.D. Tex. Dec. 17, 2015). Realtime
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`cannot avail itself of the courts while eschewing its obligation to assess the viability of its claims.
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`C. The Defendants’ Attorneys’ Fees Are Reasonable, Particularly in View of the
`Unreasonable Way in Which Realtime Litigated Its Claims
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`Defendants reasonably and necessarily incurred the requested $5,075,519 in attorneys’ fees
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`defending the case after the stay was lifted. Upon restarting, Defendants conducted effectively the
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`entirety of fact discovery, including document review and drafting and responding to discovery
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`requests. As detailed above, Realtime ensured that this was a time-consuming process by serving
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`voluminous infringement claim charts and a 431-page opening infringement expert report.
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`Defendants also defended eight depositions noticed by Realtime. In addition, Defendants
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`completed expert discovery, including depositions. Moreover, Realtime sought damages of $42
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`million, despite the weakness of its case, including time periods for which it was not entitled to
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`damages based on failure to mark, and a clear-cut license defense. See Dkt. 240 at 11-15.
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`Defendants pursued summary judgment, including their successful summary judgment
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`motion regarding subject matter ineligibility. While summary judgment was pending, Defendants
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`were required to prepare for trial for all twelve asserted claims, since Realtime failed to identify
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`its narrower subset of claims for trial. Defendants also incurred fees to file and defend pretrial
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`motions, prepare trial documents, draft outlines, prepare witnesses, and conduct a mock trial.
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`Further, Defendants were required to prepare for a bench trial on the license issues detailed above.
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`Case 1:17-cv-02097-RBJ Document 308 Filed 08/13/21 USDC Colorado Page 15 of 15
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`Finally, the Defendants only seek to shift fees incurred after the stay was lifted. Given the
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`circumstances of this case, Defendants’ attorneys’ fees have been reasonable.
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`V.
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`CONCLUSION
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`For the reasons stated, Defendants respectfully request that the Court declare this case
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`exceptional and award Defendants their attorneys’ fees. While the fees incurred through July 2021
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`are enumerated with this motion, additional fees are being incurred to prepare this motion and a
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`likely reply. Should the Court find it helpful, Defendants respectfully request a hearing and would
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`provide the Court with an updated accounting of fees incurred at that hearing.
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`Respectfully submitted,
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` Dated: August 13, 2021
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`s/ Adam R. Shartzer
`Ruffin B. Cordell
`Adam R. Shartzer
`Brian J. Livedalen
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`Hugh Q. Gottschalk
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`FISH & RICHARDSON P.C.
`1000 Maine Ave. SW, Ste. 1000
`Washington, DC 20024
`PH: 202-783-5070
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`Wheeler Trigg O’Donnell LLP
`370 Seventeenth Street, Suite 4500
`Denver, CO 80202
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`Attorneys for Defendants DISH
`Network L.L.C., Sling TV L.L.C.,
`Sling Media L.L.C., and DISH
`Technologies L.L.C.
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`CERTIFICATE OF COMPLIANCE: This motion/brief complies with: (1) the
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`guidelines set forth in D.C.COLO.LCivR 54.3 and (2) the type-volume limitation of
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`D.C.COLO.LPtR 17. This brief contains 4,549 words.
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`CERTIFICATE OF SERVICE: I certify that on this 13th day of August, 2021, I
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`electronically filed this with the Clerk of the Court using CM/ECF, which will serve all counsel.
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`CERTIFICATE OF CONFERENCE: I certify that on August 12, 2021, counsel for the
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`parties met and conferred regarding this motion and no agreement was reached on exceptionality.
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`s/ Adam R. Shartzer
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