On November 5, 2010, Judge Means issued an order in Highmark, Inc. v. Allcare Health Management Systems, Inc. awarding Highmark $4,694,727.40 in attorney’s fees and $209,626.56 in expenses (pdf copy of order here). The order arose out of a patent infringement lawsuit between Highmark and Allcare. Highmark filed a declaratory judgment lawsuit in the Northern District of Texas, and Allcare counterclaimed for infringement of its patent. After Highmark prevailed on its noninfringement defense, Judge Means determined that the case was exceptional, pursuant to 35 U.S.C. § 285, in Highmark’s favor on account of certain actions undertaken by Allcare, and that there was no cause to exercise the Court’s discretion and deny Highmark’s request for fees.
Highmark’s fee motion indicated that “16,019.67 hours were expended by attorneys working on its case and that an additional 2,640.54 hours were expended by non-attorneys” over the course of seven years. Judge Means concluded that the hourly rates of Highmark’s counsel were reasonable, but reduced the fee amount by those fees attributable to Highmark’s invalidity and unenforceability defenses and those fees attributable to certain discovery disputes (which amounted to less than $200,000).
Judge Means used his inherent authority to award approximately $360,000 in expert fees, given that 35 U.S.C. § 285 does not permit an award of expert fees as part of an exceptional case finding. Judge Means had earlier found that Allcare “pursued frivolous counterclaims even after it became clear that those counterclaims were meritless” and “asserted defenses despite knowing they were meritless.”
Highmark is represented by Craig Florence and Robert Slovak, both of Gardere Wynne Sewell LLP; and Cynthia Kernick, Frederick Colen, and Kevin Katona, all of Reed Smith LLP.