HYPERPHRASE TECHNOLOGIES, LLC v. GOOGLE INC.

Filing 152

BRIEF in Opposition by Plaintiffs HYPERPHRASE INC., HYPERPHRASE TECHNOLOGIES, LLC, Counter Defendants HYPERPHRASE INC., HYPERPHRASE TECHNOLOGIES, LLC re: 150 MOTION for Attorney Fees - Google's Motion to Find This Case Exceptional Pursuant to 35 U.S.C. § 285 and to Award Post-Remand Attorneys' Fees and Expenses filed by GOOGLE INC. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6) (Niro, Raymond)

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN HYPERPHRASE TECHNOLOGIES, LLC and HYPERPHRASE INC., Plaintiffs, v. GOOGLE INC., Defendant. GOOGLE'S MOTION TO FIND THIS CASE EXCEPTIONAL PURSUANT TO 35 U.S.C. 285 AND TO AWARD POST-REMAND ATTORNEYS' FEES AND EXPENSES Pursuant to Fed. R. Civ. P. 54(d)(2) Google Inc. ("Google") respectfully submits this motion seeking its attorneys' fees and expenses incurred since the remand of this case after appeal. As explained more fully in the supporting memorandum filed with this motion, the Court should deem this case exceptional because of litigation conduct by Hyperphrase Technologies, LLC and Hyperphrase, Inc. ("Hyperphrase") and its attorneys. Since remand, Hyperphrase has unreasonably prolonged and complicated this action, causing Google to incur significant additional expense when the case should have been wrapped up expeditiously after remand. For the reasons set forth in the accompanying memorandum, Google respectfully submits that this case is exceptional and that Google is entitled to an award of fees pursuant to 35 U.S.C. 285. Civil Action No. 06 C 0199 bbc Dated: January 23, 2009 By: s/James D. Peterson James A. Friedman James D. Peterson Godfrey & Kahn, S.C. One East Main Street, Suite 500 P.O. Box 2719 Madison, WI 53701-2719 Phone: (608) 257-3911 Facsimile: (608) 257-0609 Of counsel: Jason W. Wolff Fish & Richardson P.C. 12390 El Camino Real San Diego, CA 92130 Telephone: (858) 678-5070 Facsimile: (858) 678-5099 Frank E. Scherkenbach Kurt L. Glitzenstein Fish & Richardson P.C. 225 Franklin Street Boston, MA 02110 Telephone: (617) 542-5070 Facsimile: (617) 542-8906 Attorneys for Defendant Google, Inc. 2 CERTIFICATE OF SERVICE I hereby certify that on January 23, 2009, I caused the following documents GOOGLE'S MOTION TO FIND THIS CASE EXCEPTIONAL PURSUANT TO 35 U.S.C. 285 AND TO AWARD POST-REMAND ATTORNEYS' FEES AND EXPENSES; GOOGLE'S MEMORANDUM IN SUPPORT OF ITS MOTION TO FIND THIS CASE EXCEPTIONAL PURSUANT TO 35 U.S.C. 285 AND TO AWARD POST-REMAND ATTORNEYS' FEES AND EXPENSES. to be electronically filed with the Clerk of the Court using the ECF system which will send notification to the following ECF participants: Kim Grimmer (kgrimmer@sbglaw.com) Jennifer L. Amundsen (jamundson@sbglaw.com) SOLHEIM BILLING & GRIMMER, S.C. One South Pinckney Street Suite 301 Madison, WI 53703 Telephone: (608) 282-1200 Facsimile: (608) 282-1218 Raymond P. Niro (niro@nshn.com) NIRO, SCAVONE, HALLER & NIRO 181 West Madison, Suite 4600 Chicago, Illinois 60602 Phone: (312) 236-0733 Fax: (312) 236-1471 3494989_1 Attorneys for Plaintiffs HYPERPHRASE TECHNOLOGIES, LLC and HYPERPHRASE INC. Attorneys for Plaintiffs HYPERPHRASE TECHNOLOGIES, LLC and HYPERPHRASE INC. 3

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