Rachel Krevans, Morrison & Foerster partner (Jason Doiy)
SAN FRANCISCO — Apple is hitching its case for $15.7 million in attorney fees from Samsung to the U.S. Supreme Court’s recent rulings on fee shifting in patent cases.
In the aftermath of the companies’ original 2012 patent trial, Apple Inc. is trying to force Samsung Electronics Co. to cover a chunk of its $60 million legal bill to Morrison & Foerster. Its latest filings have drawn ammunition from Octane Fitness v. Icon Health & Fitness and Highmark v. Allcare Health Management System, a pair of April rulings in which the high court gave district judges more discretion to award attorney fees under the Patent Act.
“Viewing the totality of the circumstances of this case, this case must be viewed as exceptional, warranting a fee award,” MoFo partner Rachel Krevans wrote in Apple’s reply brief on Tuesday.
Krevans conceded that Highmark posed different questions for the court but contended that Octane Fitness bolstered Apple’s bid for attorney fees.
Apple made its request for attorney fees in December. U.S. District Judge Lucy Koh asked for briefing on the impact of the Supreme Court rulings.
Samsung insists that the decisions mean little for Apple’s request, which was filed under a provision of the Lanham Act that allows companies that prevail on trademark and trade dress claims to recoup attorney fees in “exceptional cases.” Samsung lawyer Victoria Maroulis of Quinn Emanuel Urquhart & Sullivan stressed in Samsung’s response brief last month that Octane Fitness, a case that some hope will discourage nonpracticing entities from filing frivolous suits, is a poor fit for the smartphone rivals’ long-running patent battle.
“Octane Fitness does not improve, much less salvage, Apple’s overreaching and unwarranted motion for fees,” Maroulis wrote.
Maroulis added that the Supreme Court decisions do not improve Apple’s fortunes because the U.S. Court of Appeals for the Ninth Circuit, which handles Lanham Act claims, has never had a rigid “exceptional case” standard. She bristled at Apple’s suggestion that the more relaxed standard for fee shifting articulated in Octane Fitness would have permitted Apple to recover attorney fees under the Patent Act as well.
“Even apart from the inaccuracy of that belated, self-serving contention, Apple chose not to pursue fees under the Patent Act—only the Lanham Act,” Maroulis wrote.
But Krevans countered that the Supreme Court’s broad approach to fee shifting makes it appropriate to consider the full amount Apple could have recovered. She stressed that Apple’s request for less than $16 million is even more reasonable in light of the high court’s decisions.
“Samsung’s narrow, rigid views of the evidence and strength of Apple’s litigation position are inconsistent with the Supreme Court’s broad, flexible standard that determines exceptionality based on the totality of the circumstances,” Krevans wrote.
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