Case 1:17-cv-02097-RBJ Document 342 Filed 09/19/22 USDC Colorado Page 1 of 14
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` IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`Judge R. Brooke Jackson
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`Civil Action No 17-cv-02097-RBJ
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`REALTIME ADAPTIVE STREAMING LLC,
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`Plaintiff,
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`v.
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`SLING TV L.L.C.,
`SLING MEDIA, L.L.C.,
`ECHOSTAR TECHNOLOGIES L.L.C.,
`DISH NETWORK L.L.C
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`
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`Defendants.
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`
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`ORDER AWARDING ATTORNEY’S FEES
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`The Court previously granted summary judgment in favor of the defendants and found
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`that this is an “exceptional case” for purposes of an attorney’s fee award. The amount of the
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`attorney’s fee claimed by defendants was disputed. Having considered the parties’ briefs and the
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`evidence and arguments presented during the hearing, the Court awards attorney’s fees to
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`defendants Sling TV L.L.C., Sling Media, L.L.C., Echostar Technologies, L.L.C., and Dish
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`Network, L.L.C. (collectively the “Dish defendants”) and against plaintiff Realtime Adaptive
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`Streaming, L.L.C. in the amount of $3,911,002.79.
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`BACKGROUND
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`This patent infringement case was filed on August 31, 2017. ECF No. 2. On February
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`26, 2019, the Court granted the then-parties’ joint motion for a stay until resolution of certain
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`related matters pending before the Patent Trial and Appeal Board. ECF No. 162. The case was
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`Case 1:17-cv-02097-RBJ Document 342 Filed 09/19/22 USDC Colorado Page 2 of 14
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`administratively closed at that time. ECF No. 163. The stay was lifted, and the case was
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`reopened, on January 15, 2021. ECF No. 179.
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`On May 26, 2021, the Dish defendants filed a motion for summary judgment based on
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`their contention that the subject patent was invalid. ECF No. 216. Two days later the Dish
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`defendants filed four additional motions for summary judgment based on other theories. See
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`ECF Nos. 218, 221, 223 and 227. The Court rejected what appeared to be an effort to
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`circumvent its page limitations by filing five separate motions for summary judgment; denied all
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`the motions for that reason; and recommended that the Dish defendants pick whatever it
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`considered to be its best issue and move on that basis. ECF No. 232.
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`On June 2, 2021, the Dish Defendants filed a motion for summary judgment of invalidity
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`based on lack of subject matter jurisdiction. ECF No. 234. Briefing on this motion was
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`completed upon the filing of the Dish defendants’ reply brief on July 2, 2021. ECF No. 280.
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`The Court granted the motion and dismissed the case with prejudice in an order issued on July
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`21, 2021. ECF No. 305. On August 13, 2021, the Dish defendants moved to dismiss their
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`counterclaims in view of the Court’s granting of their motion for summary judgment. ECF No.
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`307. That motion was granted, and an amended final judgment was entered on January 20, 2022.
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`ECF Nos. 325 and 326. The merits of those findings and conclusions are currently on appeal to
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`the Federal Circuit.
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`In the meantime, however, the Dish defendants moved for an award of attorney’s fees
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`under 35 U.S.C. § 285 in the amount of $5,075,519. ECF No. 308. Following briefing, the
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`Court on January 20, 2022 found that this is an exceptional case and that the Dish defendants as
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`the prevailing parties are entitled to an award of attorney’s fees. ECF No. 326. The Court did
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`not determine a reasonable amount at that time. Rather, I asked that a responsible partner or
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`Case 1:17-cv-02097-RBJ Document 342 Filed 09/19/22 USDC Colorado Page 3 of 14
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`principal lawyer carefully review the defense teams’ time entries and cull all time that he or she
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`finds to be duplicative, inefficient, or otherwise unreasonable in view of the factors set forth in
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`Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714 (5th Cir. 1974). I indicted that a
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`responsible member of the plaintiff’s legal team should then review the remaining time entries to
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`identify time that plaintiff still considered to be unreasonable or not satisfactorily explained.
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`Then counsel should confer and attempt to reach agreement. If agreement were not reached,
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`then the parties should set an evidentiary hearing. I invited plaintiff to divulge information about
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`the time spent by members of the plaintiff’s team and their corresponding rates if it was willing
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`to do so.
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`Adam Shartzer, a principal of the law firm Fish & Richardson that served as lead counsel
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`for the Dish defendants, did the screening and culling requested by the Court. However,
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`plaintiff’s counsel did not object to any of the remaining time entries. There was discussion of a
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`possible resolution, but nothing came of it. The Court then conducted an evidentiary hearing on
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`May 19, 2022; and because the hearing was not completed, the Court held a second session of
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`the hearing on August 4, 2022. The Court then took the matter under advisement pending its
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`review of the evidence and preparation of this order.
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`STANDARD OF REVIEW
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`In determining the reasonableness of attorney’s fees, the Court starts with the “lodestar”
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`which is the product of hours “reasonably expended” times a “reasonable hourly rate.” See
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`Robinson v. City of Edmund, 160 F.3d 1275, 1281 (10th Cir. 1998). The lodestar is presumed to
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`be a reasonable fee. Id. However, the lodestar can be adjusted after considering factors affecting
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`reasonableness such as the 12 factors articulated in Johnson v. Georgia Highway Express, Inc.,
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`488 F. 2d 714 (5th Cir. 1974): (1) the time and labor required; (2) the novelty and difficulty of
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`the questions; (3) the skill required; (4) preclusion of other employment; (5) the customary fee in
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`the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the
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`client; (8) the amount involved and the results obtained; (9) the experience, reputation and ability
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`of the attorney’s; (10) the undesirability of the case; (11) the nature and relationship of the
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`professional relationship with the client; and (12) awards in similar cases. Id. at 717-19. The
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`Colorado Rules of Professional Conduct provide a similar list of relevant factors.1
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`ANALYSIS AND CONCLUSIONS
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`A. The Dish Defendants’ Initial Application.
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`As indicated above, in their motion for an award of attorney’s fees the Dish defendants
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`sought an award of $5,075,519, claiming that those were the attorney’s fees they reasonably
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`incurred in the six and one-half months after the stay was lifted. ECF No. 308 at 14. This sum
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`included fees billed by Fish & Richardson, L.L.C. ($4,971,532.50) and by Denver counsel
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`Wheeler, Trigg, O’Donnell LLP ($103,986.50). ECF Nos. 308-1 at 1; 308-3 at 1.
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`In support, the Dish defendants filed the declaration of Mr. Shartzer, describing the
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`members of the Fish & Richardson PC team and the work they performed. The Fish &
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`Richardson contingent included thirteen lawyers; three paralegals; four discovery analysts; four
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`library and search analysts; an IP operations specialist; and a graphic artist. ECF No. 308-1.
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`Their rates ranged upward to $900 per hour. Overall, these individuals had an average billing
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`rate of approximately $668 per hour. That included a 15.5% discount that Dish receives. Id. at
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`1 The Colorado Rules of Professional Conduct are found as an Appendix to Chapters 18 to 20,
`COLORADO COURT RULES – STATE (2018). These factors identified in Rule 1.5 are (1) time and labor
`required, (2) likelihood of preclusion of other employment, (3) fee customarily charged in the locality, (4)
`amount involved and results obtained, (5) time limitations imposed by the client or circumstances, (6)
`nature and length of the professional relationship, (7) experience, reputation, and ability of the lawyer(s),
`and (8) whether the fee is fixed or contingent.
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`11-12. Defendants also filed the affidavit of Hugh Gottschalk, a partner in Wheeler Trigg
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`O’Donnell LLP, who indicated that his firm’s fees totaled $103,986.50. This represented the
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`work of one partner, one associate and one paralegal, at rates between $685 and $220 per hour,
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`with an overall average billing rate of approximately $637 per hour. ECF No. 308-3.
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`In its response Realtime asserted that $5 million is unreasonable on its face. ECF No.
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`319 at 14. However, it declined to dig into the “84 pages of raw billing entries” to highlight
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`those it believed to be unreasonable, and it suggested that the Court should not have to do that
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`either. Id.
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`B. The Dish Defendants’ Revised Application: the Lodestar.
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`After receiving the Court’s direction that counsel cull out all duplicative and otherwise
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`inefficient time, Mr. Shartzer reviewed the Fish & Richardson billing records and reduced the
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`total amount from $4,971,532.50 to $4,293,406.93, a reduction of $678,125.57. Compare ECF
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`No. 308-2 with ECF No. 333-1.2 The reduction was accomplished by eliminating 1,073 hours,
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`including the hours of fourteen timekeepers. See Ex. 7 at 3-4. The Dish defendants also
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`withdrew their previous request for an award of prejudgment interest.
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`The Dish defendants’ total request after the culling but with the addition of Fish &
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`Richardson’s “fees-on-fees,” is $4,564,236.63, comprised as follows:
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`Fish & Richardson pre-attorney’s fee application fees:
`Wheeler Trigg O’Donnell fees
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`“Fees-on-Fees”
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`Hours billed drafting fees motion
`97,065.50
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`Hours billed calculating fees
`69,777.70
`TOTAL
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`$4,293,406.93
` 103,986.50
` 166,843.20
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`$4,564,236.63
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`2 Defendants have also indicated that they culled $164,942 before submitting their original fee request.
`See ECF No. 335 at 64.
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`I deem that figure, $4,564,236.63, to be the “lodestar” for purposes of this
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`analysis. It is the product of what defendants submitted as reasonable hours after going
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`through the culling exercises and the rates billed to the Dish defendants by the two law
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`firms.
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`C. Wheeler Trigg O’Donnell Fees.
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`While plaintiff objected to the awarding of any attorney’s fees, it does not object
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`to the amount of the Wheeler Trigg O’Donnell fees. Therefore, I will include that
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`amount in the fee award without further discussion.
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`D. Fish & Richardson Fees.
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`As indicated above, the “lodestar” is presumptively reasonable. Robinson, 160 F.3d at
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`1281. It may be modified after consideration of the Johnson factors. However, several Johnson
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`factors are presumably reflected in the lodestar amount, so the Court must be careful not to
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`double count factors already considered. See, e.g., Imperium IP Holdings (Cayman), Ltd, No. 4:14-
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`CV-00371, 2018 WL 16022460, at *7 (E.D. Tex. April 3, 2018). With that in mind, I look at the
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`Johnson factors to determine whether an adjustment from the lodestar is warranted in this case.
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`1. The time and labor required.
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`Plaintiff’s primary argument is that the Fish & Richardson firm’s hours, even after
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`culling, were excessive. However, plaintiff’s counsel did not identify any line item in the Fish &
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`Richardson billing records to which plaintiff objects. Indeed, during the second phase of the
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`hearing counsel expressly disavowed any desire to scrutinize or complain about the fee request
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`on a line-item basis. Rather, plaintiff identified large categories of time that it asked the Court to
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`eliminate. I address those categories in turn.
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`a. Hours Exceeding Plaintiff’s Counsel’s Hours.
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`Philip X. Wang was plaintiff’s lead counsel in this case. In his declaration Mr. Wang
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`provided a chart showing that plaintiff’s legal team recorded 2,094 hours in this case. ECF No.
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`331 at 2. Actually, plaintiff’s team recorded 2,430.5 hours, including 1009.5 hours by Mr. Wang
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`alone. However, he stated that this figure “included substantial work on other Realtime cases
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`(including multiple Federal Circuit appeals, the ‘610 patent reexam, and other district court
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`cases).” Id. at 2, n.4. Thus, he excluded 336.6 of his own hours from his summary of the hours
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`relevant to the present case, resulting in the 2,094-hour number. Counsel suggested that if
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`defendants would accept fees determined by multiplying plaintiff’s remaining 2,094 hours times
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`Fish & Richardson’s average hourly rate of $668 (which was lower than plaintiff’s average hours
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`rate), plaintiff would find that to be reasonable. This would produce attorney’s fees for the Fish
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`& Richardson component of defendants’ fee request of $1,398,792.
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`I disagree with this approach. I invited plaintiff to provide its counsel’s hours and rates if
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`it wished to do so, and I appreciate receiving the information. It puts defendants’ fees in a useful
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`context. However, the fact that plaintiff’s team recorded fewer hours does not establish that the
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`Fish & Richardson hours were unreasonable. Defendants were facing a $42 million claim based
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`on alleged infringement of multiple patent claims. Although plaintiff perhaps would have
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`narrowed its claims and theories by the time of trial, defendants reasonably had to prepare to
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`defend all the claims and theories.
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`Realtime has initiated multiple infringement lawsuits through the same law firm. In my
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`order granting defendants’ motion for summary judgment, I noted that two courts had already
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`invalidated similar claims in Realtime’s ‘535 patent as expressing ineligible abstract ideas.
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`When the plaintiff and its lawyers research and brief similar arguments in multiple cases, one can
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`expect economies of scale. Indeed, the fact that Mr. Wang recorded 336.6 hours to this file that
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`he believes more appropriately should have been recorded to different Realtime cases supports
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`my point. When a law firm is filing multiple infringement cases raising similar claims against a
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`variety of defendants, the hours recorded to individual files and lawsuits do not necessarily
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`reflect the amount of work the case would have required if it were Realtime’s only case.
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`Neither side chose to present independent expert testimony regarding the reasonableness
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`of their respective hours billed. That is fine, but the undisputed fact that the Dish defendants
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`paid all the fees billed, including the amounts culled by Mr. Shartzer, is in a sense independent
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`evidence. After all, defendants are sophisticated technology companies and presumably
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`sophisticated consumers of legal services.
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`In sum, the comparison to plaintiff’s hours is not dispositive in evaluating the
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`reasonableness of defense counsel’s hours. It is a factor that I have considered, but I find other
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`factors to be more significant, as I discuss next.
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`b. Hours Spent on Excessive Summary Judgment Motions.
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`Here, I agree with plaintiff. The Court has practice standards setting the page limits of
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`motions for summary judgment, responses, and replies. Defendants filed multiple motions for
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`summary judgment, each addressing a different theory of relief. The individual motions each
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`met the Court’s page limits, but collectively they far exceeded them. As indicated earlier in this
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`order, the Court struck those motions and advised defendants to pick whichever they regarded as
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`their best issue and file a succinct and compliant motion based on that issue. See ECF No. 232.
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`They did so. ECF No. 234. That motion was ultimately granted.
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`Plaintiff contends that the time spent preparing the summary judgment motions that the
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`Court did not consider should be eliminated. Plaintiff indicates that this time accounts for 762
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`hours. Defendants have not shown that that figure is incorrect. However, they argue that the
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`time should not be excluded because it was time that also contributed to defendants’ preparation
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`for trial. I accept that some of the time spent on summary judgment motions was beneficial
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`during trial preparation. However, I have no way to quantify it. The briefing of summary
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`judgment motions and the preparation for trial are two different phases of a case, often done by
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`different members of the team. In any event, I am not inclined to find time spent in derogation
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`of the Court’s practice standards to be reasonable. Therefore, while the hours included in the
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`lodestar were presumptively reasonable, I find that the presumption has been rebutted with
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`respect to the hours spent on the stricken motions. Accordingly, I will eliminate 762 hours at
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`Fish & Richardson’s average hourly rate of $674.12 for a total of $513,679.44.3
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`c. Fees on Fees.
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`Defendants’ hours preparing and defending its motion for attorney’s fees should be
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`included. See Central Soya Co., Inc. v. Geo. A. Hormel & Co., 723 F.2d 1573, 1578 (Fed. Cir.
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`1983) (citing Codex Corp. v. Milgo Electronics Corp., 541 F. Supp. 1198, 1201 (D. Mass. 1982)
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`which held that attorney’s fees spent on the fee application itself may be awarded under § 285).
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`Defendants had no choice but to incur attorney’s fees justifying their application for a fee award
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`in light of plaintiff’s opposition. Thus, I will not exclude the $97,065.50 for “hours billed
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`drafting fees motion.” However, I will exclude the $69,777.70 allocated to “hours billed
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`calculating fees.” This was Mr. Shartzer’s and perhaps others’ work culling the original fee
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`3 The average rate of the Fish & Richardson attorneys was initially $668, but it increased slightly to $674.12 as a
`result of the culling process.
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`application at the Court’s request to eliminate duplication, inefficiency, etc. Essentially, it is
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`work that was done to make the final amount charged to the plaintiff reasonable. Plaintiff should
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`not be required to pay fees for the time expended by defense counsel assuring that the amount
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`billed was reasonable.
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`d. Summary Judgment Delay.
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`Plaintiff argues that defendants should have filed their motion for summary judgment
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`based on invalidity shortly after the stay was lifted on January 15, 2021, rather than waiting until
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`June 2, 2021 to file the ultimately successful motion. Plaintiffs suggest that, had defendants
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`done so, much of the time spent in the intervening four and a half months would have been
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`avoided.4 I do not agree that this time should be discounted.
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`It is ironic that plaintiff, who from the outset contested defendants’ position that the
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`subject claims were invalid, now is claiming that defendants should have filed and won their
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`motion for summary judgment sooner. One might counter than if plaintiff had conceded
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`invalidity, none of the fees that are the subject of this order would have been incurred. Courts
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`grant summary judgment only if there are no material facts that are genuinely disputed. I cannot
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`fault defendants for obtaining discovery and getting their “ducks in a row” before filing their
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`motion.
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`2. The novelty and difficulty of the questions. Patent infringement litigation is complex.
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`Attacking the validity of a patent on grounds that it claims an abstract idea is inherently difficult; the line
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`between what is patent-eligible and what is not is not an easy one to draw. On the other hand, as I pointed
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`4 In support of the delay theory, plaintiff suggest that only the attorney’s fees incurred during the first two months
`after the stay was lifted should be awarded. ECF No. 335 at 17-18. Alternatively, plaintiff argued that all time
`before May 28, 2021 should be eliminated. Id. at 16-17. May 28, 2021 was the date that on which defendants filed
`the declaration of their expert, Dr. Alan C. Bovik. The Court cited Dr. Bovik’s declaration as one factor supporting
`its order that this was an exceptional case. See ECF No. at 326 at 7. Plaintiff posits that the case only became
`exceptional on that date. However, the Court found that the case was exceptional based upon several factors, only
`one of which was Dr. Bovik’s opinion.
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`out in my order finding this to be an exceptional case, two courts had already found similar claims in
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`different Realtime patents to be invalid. See ECF No. 326 at 4-5. That somewhat eased the burden on
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`defendants to show that the subject claims were invalid. On balance, I find that this factor does not
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`suggest that the Fish & Richardson hours remaining after the exclusions I discussed above should either
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`be increased or further reduced.
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`3. The skill required. The lawyers on both sides were highly experienced and skilled in patent
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`infringement and validity litigation. Fish & Richardson “specializes in intellectual property litigation
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`with broad experience across ever IP forum – from district courts to the PTAB to the ITC – and on appeal
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`to the Federal Circuit and the United States Supreme Court.” Shartzer Affidavit, ECF No. 308-1, at 2.
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`The Affidavit goes on to describe the backgrounds and experience of the principal lawyers who worked
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`on this case. Id. at 4-10. Plaintiff has not challenged or questioned the skill or the experience of the Fish
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`& Richardson team. The case was litigated at a high level by lawyers who specialize in high-stakes
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`patent litigation. This tends to support a finding that the hours remaining after the culling process and the
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`Court’s elimination of two significant categories of time are reasonable.
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`4. Preclusion of other employment. The hours supporting the fee application were recorded for
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`the most part between January 15 and July 31, 2021. See ECF No. 308-2. The number of hours recorded
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`during that six and one-half period suggests that at least several of the lawyers on the team were working
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`essentially fulltime on the case. However, while their work on this case likely limited the time they could
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`devote to other clients during that period of time, I have no evidence that these lawyers lost clients, or that
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`they were precluded from working for their other clients for more than a few months. Moreover, Fish &
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`Richardson is a large firm with many other lawyers available to handle its cases. This is not a factor of
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`importance in this case.
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`5. The customary fee in the community. Plaintiff does not dispute Fish & Richardson’s rates.
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`Indeed, their rates, on average, were somewhat lower than the rates of the plaintiff’s lawyers. As for the
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`overall fee, defendants provided excerpts from an economic survey by the American Intellectual Property
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`Law Association concerning billing rates and “typical costs” of patent infringement litigation. Ex. 2-C.
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`If I am reading the charts correctly, the median litigation costs in 2020 where more than $25 million was
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`at stake was $2,375,000. Id. at 2-C-008. That does not, of course, focus on the Denver community.
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`Then again, the principal lawyers on both sides were not Colorado-based. The only information
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`presented concerning the “customary fee” in the Denver or Colorado communities is Mr. Gottschalk’s
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`affidavit on behalf of Denver-based co-counsel Wheeler Trigg O’Donnell LLP. The Wheeler Trigg
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`O’Donnell lawyers came into the case in April 2021, largely to assist in trial preparation and trial, and
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`their hours are far less than those of their Fish & Richardson co-counsel. The average hourly rate for the
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`Wheeler Trigg O’Donnell lawyers was $637, see ECF Nos. 30383 and 308-4. That is roughly
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`comparable to the rates of the Fish & Richardson lawyers.
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`6. Whether the fee is fixed or contingent. The fee was neither fixed nor contingent. The fees
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`recorded, including the time that Mr. Shartzer culled for present purposes, was all billed on a time basis
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`and were paid by the Dish defendants.
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`7. Time limitations imposed by the client. I am not aware of any such limits.
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`8. The amount involved and the results obtained. Plaintiffs were seeking damages in the range of
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`$42 million. While I would not classify this as “bet the company” litigation, the monetary stakes were
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`high and justified a vigorous defense.
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`9. The experience, reputation and ability of the attorneys. I have discussed that above. The
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`lawyers on both sides were top drawer in the field of patent infringement and validity litigation.
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`10. The undesirability of the case. From counsel’s perspective, this was not an undesirable
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`engagement. On the contrary, it was big-ticket, lucrative litigation of the type that firms like Fish &
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`Richardson are built to handle. This is not a factor suggesting modification of the fee.
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`11. The nature and relationship of the professional relationship with the client. Fish &
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`Richardson has a relationship with defendants that includes a 15% discount from their regularly hourly
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`rates. That discount was applied to the rates in this case. Defendants appear to be ongoing, repeat clients
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`of the law firm.
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`12. Awards in similar cases. Defendants cited four cases in which fee awards were higher than
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`what they seek here. Ex. 7 at 18. In Imperium IP Holdings (Cayman), Ltd, in which a jury found that
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`defendant infringed a total of seven claims in two patents and awarded nearly $7 million in damages, the
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`court awarded $7,080,695.77 in attorney’s fees. 2018 WL 1602460 at *8. The awards in the other three
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`cases were also substantial. See Finjan, Inc. v. Juniper Networks, Inc., No. C 17-05659 WHA, 2021 WL
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`3140716 (N.D. Cal. July 26, 2021) (approximately $5.9 million, including costs); Kilopass Tech, Inc. v.
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`Sidense Corp, 82 F. Supp. 3d 1154, 1175 (N.D. Cal. 2015) (approximately $5.3 million); and Aventis
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`CropScience, N.V. v. Pioneer Hi-Bred Int’l, Inc., No. 1:00CV463, 2010 WL 2306677, at * (M.D. N.C.
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`June 8, 2010) (approximately $4.9 million including costs I also mentioned the economic survey by the
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`American Intellectual Property Law Association above. The “typical” costs shown in that survey were
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`lower than what is requested here. However, I cannot tell from that survey what fees were awarded in
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`cases similar to this case. Suffice it to say that in high stakes patent infringement and invalidity litigation,
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`such as the present case, the attorney’s fees are likely to be high. I believe the experienced lawyers and
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`parties in this case understood that from the outset.
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`E. Conclusion re the Fish & Richardson Fees.
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`The Fish & Richardson fees in their revised application ($4,293,406.93 plus the hours
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`billed with respect to the fees motion ($97,065.50), minus the fees allocated to the improperly
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`filed motions for summary judgment ($513,679.44 and minus the fees incurred for re-calculating
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`the fees ($69,777.70) nets to a total of $3,807,015.29
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`ORDER
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`The Court finds and concludes that defendants’ fees in the total amount of $3,911,002.79,
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`comprised of $3,807,015.29 billed by the Fish & Richardson law firm and $103,987.50 billed by
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`the Wheeler Trigg O’Donnell law firm are reasonable. The Court orders plaintiff to pay those
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`fees to the defendants. A Second Amended Final Judgment will issue including those fees.
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`13
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`Case 1:17-cv-02097-RBJ Document 342 Filed 09/19/22 USDC Colorado Page 14 of 14
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`DATED this 19th day of September, 2022.
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`BY THE COURT:
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`___________________________________
`R. Brooke Jackson
`United States District Judge
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