United States District Court, D. Nebraska
F. Bataillon Senior United States District Judge
matter is before the Court for entry of judgment pursuant to
the jury verdict, Filing No. 914. The issue of
damages in this patent infringement action was retried on
remand from the United States Court of Appeals for the
Federal Circuit (“Federal Circuit”). Filing
No. 706, Federal Circuit opinion. After the trial, the
jury found defendant Briggs & Stratton Corporation
(“Briggs”) liable for $14, 380, 062.24 in
damages. Filing No. 914, Verdict. Plaintiff Exmark
Manufacturing Company Inc. (“Exmark”) again seeks
enhanced damages under 35 U.S.C. § 284. Filing No.
883, Trial Brief at 2; Filing No. 898, Pretrial
Order at 4. Exmark also seeks an award of attorney fees and
costs, as well as prejudgment and post-judgment interest.
first trial of this action, the jury found willful
infringement by Briggs. Filing No. 599, Verdict at
2. On remand, this Court reaffirmed the willfulness finding.
Filing No. 868, Memorandum and Order. Pursuant to
the jury's finding at the first trial, the Court enhanced
Exmark's award in an amount equal to the damages found by
the jury- $24, 280, 330 dollars-effectively doubling
Exmark's recovery. Filing No. 689, Memorandum
and Order at 10. The Court stated “[a]lthough the court
is authorized to award damages of up to triple the amount of
the compensatory award, the court finds that an award equal
to the jury's award of damages is sufficient to serve the
purposes of the enhanced damages provision of the
statute.” Id.The Court noted the factors
outlined in Read Corp. v. Portec, Inc., 970 F.2d
816, 826-28 (Fed. Cir. 1992). In consideration of the evidence
of copying, Briggs's knowledge of or willful blindness to
the patent, its litigation behavior, the duration of
infringement, and Briggs's size and financial condition,
the court found an enhancement equal to the jury's award
was sufficient to satisfy the punitive purpose of enhanced
damages. Id. at 7-10. For the reasons stated in its
earlier order, the Court again finds that recovery of twice
the amount of the jury's verdict is the appropriate
measure of enhanced damages in this case.
may, but are not required to, award reasonable attorney fees
in “exceptional” cases. See Octane
Fitness, LLC v. ICON Health & Fitness, Inc., 134
S.Ct. 1749, 1755-56 (2014). After the first trial, the Court
found Exmark had not shown that the case was exceptional so
as to warrant an award of fees. See Filing No. 689,
Memorandum and Order at 11 (denying motion for attorney fees
and noting that “[i]n this court's experience,
unreasonable claim constructions, prolix pleadings, positions
that strain credulity, flawed theories, and incorrect or
unsupported arguments are the norm and not the exception in a
hotly contested, high-stakes patent or commercial litigation
case”). The Court considered the totality of the
circumstances, weighing factors including frivolousness,
motivation, objective unreasonableness (both in the factual
and legal components of the case) and the need in particular
circumstances to advance considerations of compensation and
deterrence. See id. at 7, 11. The Court noted that
both parties contributed to delay and both succeeded on some
of their claims.
retrial, the Court again “cannot say that Briggs's
contentions were vexatious, frivolous, offensive, or
improper” and finds that “[l]osing a case does
not make the case exceptional.” See
id. The Court sees no reason to disturb its earlier
findings. The Court's rationale applies equally to the
retrial. In terms of the strength of the parties'
litigating position and the manner of litigation, the case is
not one that stands out from other cases. Accordingly,
Exmark's request for attorney fees will be denied.
the first trial, the Court found that an award of prejudgment
interest, calculated at the U.S. Treasury rate, compounded
annually, for the relevant time period, was appropriate. In
contrast to attorney fees, an award of prejudgment interest
is the rule, not the exception, in patent infringement cases.
General Motors Corp. v. Devex Corp., 461 U.S. 648,
655 (1983). For the reasons set out in its
earlier order, the Court again finds that prejudgment
interest should be awarded and finds, in its discretion that
the U.S. Treasury rate remains appropriate to compensate
Exmark for the infringement of its patent, in light of the
delay in filing its lawsuit against Briggs. See Filing
No. 690, Memorandum and Order at 10-11. Accordingly,
Exmark's request for prejudgment interest will be
interest, of course, is mandatory. 28 U.S.C. §
1961. Further, the Court earlier found that Exmark was
the prevailing party and is entitled to an award of costs.
That finding still stands. Accordingly, Exmark's requests
for postjudgment interest and costs will be granted.
1. Exmark is awarded damages under 35 U.S.C. §
284 in the amount of $14, 380, 062.24.
2. Exmark's request for attorney fees is denied.
3. Exmark is awarded prejudgment interest, calculated at the
U.S. Treasury rate, compounded annually, from and after May
4. Exmark is awarded costs in this action and shall file an
appropriate bill of costs in accordance with Local Rule