Justin Timberlake and Britney Spears are going to get their attorney fees. Every last dollar of them.
After a second trip to the U.S. Court of Appeals for the Federal Circuit, the pop stars have won $737,000 in fees payable by a nonpracticing entity that accused them of infringing a patent on panoramic video displays used in concerts.
It’s a nice win for the performers’ lead counsel, Andrew Langsam of Pryor Cashman, who took heat from both appellate panels that heard the case. The most recent panel squeezed real hard on the parties to settle, but the pop stars refused and have now been awarded their entire fee request under Section 285 of the Patent Act.
“The district court did not abuse its considerable discretion in awarding fees for the entire litigation,” Judge Richard Linn wrote for a unanimous panel in Large Audience Display Systems v. Tennman Productions.
U.S. District Judge Manuel Real of the Central District of California awarded fees in 2015, saying Large Audience Display Systems’ case was frivolous. The first Federal Circuit panel found that holding erroneous, and questioned why 79 percent of the billing in the case came from Pryor Cashman partners.
The second time around, Real found the case exceptional because LADS incorporated in Texas immediately before filing suit in an effort to establish venue there; two of LADS’s seven claim construction positions during re-examination were “objectively weak”; and because LADS’s trial counsel Michael Burk had improperly used a privileged email from Pryor Cashman during the fee litigation. Real stuck with the same amount of fees.
On Monday, the appellate court dodged a tricky issue in “exceptional case” fee-shifting. Most of the fees Real awarded were incurred when the pop stars sought re-examination of LADS’s patent at the Patent Trial and Appeal Board, not in district court.
Linn and Judge Kathleen O’Malley had flatly told Langsam at oral argument that fees from the PTAB are not recoverable under Section 285. “That’s not part of the litigation,” Linn explained. “That’s a separate legal proceeding.”
But Langsam had pointed in supplemental briefing to two Federal Circuit cases where re-examination fees were described as “ordinarily necessary” ancillary fees that can be awarded.
Linn and the Federal Circuit concluded Monday that LADS, Burk and appellate counsel at Meyertons, Hood, Kivlin, Kowert & Goetzel waived the PTAB argument by failing to raise it in their challenge to the fees.