Filed on behalf of Petitioner
`By: Richard F. Giunta
`
`Elisabeth H. Hunt
`
`Randy J. Pritzker
`
`Michael N. Rader
`
`WOLF, GREENFIELD & SACKS, P.C.
`
`600 Atlantic Avenue
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`Boston, MA 02210
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`Tel: (617) 646-8000
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`Fax: (617) 646-8646
`
`RGiunta-PTAB@wolfgreenfield.com
`
`
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`
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`
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`Paper No. __
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`RPX Corporation
`Petitioner
`v.
`Applications in Internet Time, LLC
`Patent Owner
`_____________
`
`Case IPR2015-01750
`Patent 8,484,111 B2
`
`Case IPR2015-01751
`Case IPR2015-01752
`Patent 7,356,482 B21
`
`_____________
`PETITIONER’S MOTION FOR ATTORNEYS’ FEES
`
`
`1 The word-for-word identical paper is filed in each proceeding identified in the
`heading.
`
`
`
`
`By: Richard F. Giunta
`
`Elisabeth H. Hunt
`
`Randy J. Pritzker
`
`Michael N. Rader
`
`WOLF, GREENFIELD & SACKS, P.C.
`
`600 Atlantic Avenue
`
`Boston, MA 02210
`
`Tel: (617) 646-8000
`
`Fax: (617) 646-8646
`
`RGiunta-PTAB@wolfgreenfield.com
`
`
`
`
`
`
`
`
`
`Paper No. __
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`RPX Corporation
`Petitioner
`v.
`Applications in Internet Time, LLC
`Patent Owner
`_____________
`
`Case IPR2015-01750
`Patent 8,484,111 B2
`
`Case IPR2015-01751
`Case IPR2015-01752
`Patent 7,356,482 B21
`
`_____________
`PETITIONER’S MOTION FOR ATTORNEYS’ FEES
`
`
`1 The word-for-word identical paper is filed in each proceeding identified in the
`heading.
`
`
`
`
`
`
`
`Pursuant to the Board’s order dated May 6, 2016 (Paper 58 in IPR2015-
`
`01750 and -01752 and Paper 60 in IPR2015-01751; hereafter “Order”), RPX
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`submits this Motion For Attorneys’ Fees.
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`The Board authorized the parties, via this Motion and an opposition, to
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`“submit additional briefing on the extent of attorneys’ fees requested …
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`includ[ing] specific information as to the total amount of fees requested, details
`
`regarding the tasks performed underlying those fees, and reasons why the amount
`
`of those fees are reasonable.” Order at 14. The Order by its terms does not
`
`authorize further briefing on whether sanctions are appropriate, but rather solely
`
`on the extent of the attorneys’ fees. The question of whether sanctions are
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`warranted is addressed in prior briefing, and the Board has already found that AIT
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`breached the protective order and that RPX has “suffered harm” as a result of
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`AIT’s conduct. Order at 3-7.
`
`As discussed in its Motion for Sanctions (Paper 34), RPX requests only
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`attorneys’ fees incurred after AIT’s repeated breach on November 30, which AIT
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`committed after having been apprised of previous breaches. RPX remains
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`uncompensated for outside counsel’s work prior to November 30 in dealing with
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`the initial breaches (including the significant email exchanges with AIT’s counsel
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`cited as Exs. 1029-1033, 1035 and 10362), RPX’s own time and effort (e.g., via in-
`
`
`2 Citations herein are to the Exhibit numbers used in IPR2015-01750 and -01751.
`1
`
`
`
`
`
`
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`house counsel and other employees) in addressing AIT’s breaches (including
`
`significant work after the repeated breach on November 30), and any and all harm
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`to its client relationships and its business, including harm the Board found “that
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`RPX has suffered” due to the disclosure of its confidential information to Messrs.
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`Boebel and Knuettel. Order at 7.
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`As the Board also found, “RPX has suffered harm to the extent that it had to
`
`expend time and money enforcing clear terms of the Protective Order that AIT
`
`should have been following without RPX’s efforts.” Order at 7. The money that
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`RPX had to expend included attorneys’ fees for preparing and filing the Motion for
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`Sanctions (and its accompanying Motion to Seal (Paper 31)), which the Board
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`found meritorious and granted in part. The awarded sanctions included
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`declarations that AIT had previously failed to provide and that the Board
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`determined were “necessary, both to clarify the scope of the disclosure of RPX’s
`
`confidential information and to comply with [the Board’s] prior Order (Paper 23).”
`
`Order at 9. In addition, although the Board denied entry of RPX’s specific
`
`proposed revised Protective Order, in ruling on the Motion for Sanctions the Board
`
`did enter a new and more restrictive Protective Order “given AIT’s previous
`
`disregard of its obligations under the Protective Order.” Order at 12.
`
`The spreadsheet submitted as Exhibit 1050 provides a list of the time entries
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`for which RPX seeks an award of attorneys’ fees, including the timekeepers’
`
`
`
`2
`
`
`
`
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`descriptions of the tasks performed. The hourly fees reflected on RPX’s invoices
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`for these time entries total $15,952.90, but due to a discount extended to RPX on
`
`these charges, the total fees paid by RPX on these entries and requested in this
`
`motion is $13,559.97. All of the time entries listed in Exhibit 1050 were incurred
`
`by RPX’s outside counsel subsequent to AIT’s November 30 breach and relate
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`solely to addressing AIT’s breaches of the protective order. These charges are
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`conservative and understate the actual time and fees expended in several respects.
`
`Partially redacted invoices from RPX’s counsel to RPX for services
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`rendered in December 2015 and January 2016 are submitted herewith as Exhibits
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`1051 and 1052. The time charges invoiced are for lead counsel Richard Giunta
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`(listed as R. Giunta or RFG) and backup counsel Elisabeth Hunt (listed as E. Hunt
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`or EHH) and for paralegal support from Virginia Weeks (listed as V. Weeks or
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`VLW). The invoices are redacted to remove entries that did not involve addressing
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`AIT’s breaches. Some entries involved days where counsel addressed AIT’s
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`breaches but also did other substantive work on these proceedings. Those entries
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`are shown in Exhibits 1051 and 1052, but their dollar values are not included in
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`the listing of Exhibit 1050 and the total fees requested by this motion. (A listing of
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`the mixed time entries that were incurred at least partially due to AIT’s breaches,
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`but for which attorneys’ fees are not being requested, is provided separately as
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`Exhibit 1053.) RPX would prefer to avoid any dispute about the extent of “partial”
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`
`
`3
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`
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`
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`time charges attributable to addressing AIT’s breaches, and simply will forego
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`asking the Board to be reimbursed for any of those time charges. Thus, the only
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`time charges totaled in Exhibit 1050 are those in which the entirety of the work
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`was performed solely because of AIT’s breaches of the protective order. In
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`addition, the fees charged for many of the line item entries in Exhibits 1051 and
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`1052 is well below what would have been charged if the services had been billed at
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`the timekeepers’ standard billable rates.
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`The requested fees of $13,599,97 are reasonable. The total services
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`performed after November 30 in connection with AIT’s breaches and reflected in
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`the time entries listed in both Exhibits 1050 and 1053 include extensive email
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`correspondence with AIT’s counsel (e.g., Exs. 1036, 1038, 1039, 1042, 1043)
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`addressing whether there was a breach (including “enforcing clear terms of the
`
`Protective Order that AIT should have been following without RPX’s efforts”)
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`(Exs. 1031, 1038; Order at 7), negotiating with AIT whether it would provide
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`declarations that explained the scope of the breach, preparing for and conducting a
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`telephone conference with the Board to explain AIT’s conduct and request
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`authorization to file a motion for sanctions, collecting and preparing 24 new
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`exhibits to support the motion for sanctions, preparing a detailed and fact-intensive
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`15-page motion for sanctions, redacting the motion for sanctions, preparing and
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`filing a motion to seal the motion for sanctions, and redacting and moving to seal
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`
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`4
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`
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`
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`AIT’s opposition to the motion for sanctions. As discussed above and as reflected
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`in the Exhibits, the amount of fees requested by RPX as sanctions does not even
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`include a significant portion of this work – as time entries that also include work
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`on other issues (Ex. 1053) have been wholly excluded from the amount requested
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`(Ex. 1050) – and does not include any compensation to RPX for the significant
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`time its in-house personnel spent as a result of AIT’s conduct. The requested
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`award of $13,599,97 in attorneys’ fees is well below the actual cost to perform all
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`the work incurred as a result of AIT’s sanctionable conduct, is well below the fees
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`RPX incurred, and is more than reasonable.
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`In accordance with the foregoing, RPX submits this Motion for Attorneys’
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`Fees in the amount of $13,599.97. This is the total combined amount being
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`requested across all three matters IPR2015-01750, -01751, and -01752.
`
`Respectfully submitted,
`
`
`
`
`/Richard Giunta/
`Richard F. Giunta, Reg. No. 36,149
`Elisabeth H. Hunt, Reg. No. 67,336
`Randy J. Pritzker, Reg. No. 35,986
`Michael N. Rader, Reg. No. 52,146
`WOLF, GREENFIELD & SACKS, P.C.
`600 Atlantic Avenue
`Boston, MA 02210
`
`Attorneys for RPX Corporation
`
`5
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`
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`Dated: May 20, 2016
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`
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`
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`CERTIFICATE OF SERVICE UNDER 37 C.F.R. § 42.6 (e)(4)
`
`I certify that on May 20, 2016, I will cause a copy of the foregoing
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`document to be served via electronic mail, as previously consented to by Patent
`Owner, upon the following:
`
`Jonathan Pearce (Reg. No. 60,972)
`M. Kala Sarvaiya (Reg. No. 58,912)
`SoCal IP Law Group LLP
`310 N. Westlake Boulevard, Suite 120
`Westlake Village, CA 91362
`uspto@socalip.com
`
`
`
`
`
`
`/Richard Giunta/
`
`
`
`Richard F. Giunta, Reg. No. 36,149
`
`
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`
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`
`
`6
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