Professional Documents
Culture Documents
317]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
BAYER CROPSCIENCE AG, et al.,
Plaintiffs,
Civil No. 12-256 (RMB/JS)
v.
DOW AGROSCIENCES LLC,
Defendant.
was
referred
to
this
Court
for
Report
and
2012.
The
Honorable
Rene
Marie
Bumb
granted
defendants
everything
that
has
occurred,
and
after
exhaustively
the
Federal
Circuit,
the
Court
is
left
with
the
firm
attorneys
fees.
The
Court
recommends
that
LLC, C.A. No. 12-256 (RMB/JS), 2013 WL 5539410 (D. Del. Oct. 7,
2013).
Court
by
reference
Judge
Bumbs
summary.
The
known
as
Triple
Gene
Event,
comprising
three
referred
to
the
Honorable
Richard
G.
Andrews,
on
April 10, 2013, Judge Bumb was designated to hear the case.
(D.I. 100).
presented
twofold
defense
to
Bayers
complaint.
Second,
Bayer
challenged.
Dow
filed
motion
to
dismiss
on
its
and
other
non-dispositive
issues,
including
all
of
the
case
focused
on
Dows
contract
defense.
After
Consistent
market,
1
distribute
for
sale,
sell
and
offer
for
sale
Judge Andrews wrote: DAS argues that its actions in connection with
the soybean technology are validly licensed, and therefore, it cannot
infringe Bayers patents. This argument, however, asserts a factual defense.
It is not an attack on the pleadings and is misplaced within the context of
the 12(b)(6) motion. Dec. 6, 2012 Op. at 3.
4
CropScience
S.A.
and
License
Agreement
(hereinafter
As part of
Tech
Agreement.
Without
getting
into
detailed
because
if
MS
Tech
did
not
have
the
right
to
Dows
arguments,
Judge
Bumb
and
the
Federal
Circuit
alleging that Dow infringed its 401 Patent (Bayer I). That
case was referred to Judge Bumb and then to this Court to handle
non-dispositive matters. On August 24, 2011, Dow filed a motion
for leave to amend its Bayer I complaint to add a claim that Dow
infringed seven additional glyphosate patents. (D.I. 39). When
it opposed the motion Dow produced a copy of the 2011 amendment
to its 2008 sublicense. Bayer subsequently withdrew its motion
to
amend
and
later
filed
Bayer
II
on
March
12,
2002.
On
September 27, 2012 Judge Bumb granted Dows motion for summary
judgment in Bayer I holding that Bayers patent did not cover
Dows product and that under Dows construction Bayers claim
would fail as a matter of law. Bayer CropScience AG v. Dow
AgroSciences LLC, C.A. No. 10-1045 (RMB/JS), 2012 WL 4498527, at
*10 (D. Del. Sept. 27, 2012). The Federal Circuit affirmed the
decision on September 3, 2013. See 728 F.3d 1324 (Fed. Cir.
2013).
Bayer
filed
another
lawsuit
against
Dow
in
the
Eastern
crops
genetically
modified
to
tolerate
the
herbicide
before
the
International
6
Chamber
of
Commerce
Exceptional Case
may
award
reasonable
attorney
fees
to
the
prevailing
2005)).
This
standard
changed
after
Octane
Fitness
was
issued.
Octane Fitness sought to provide a more flexible approach
and
permits
district
courts
to
determine
whether
case
is
to
the
substantive
strength
of
party's
litigating
the
case)
or
the
unreasonable
manner
in
which
the
case
was
components
circumstances
of
to
the
advance
case)
and
the
considerations
need
of
in
particular
compensation
and
whether
case
is
exceptional
in
case-by-case
Id.
is
at
guided
1756.
by
Because
the
the
district
exceptional
courts
case
better
litigants
are
only
required
to
establish
their
exceptionality
commonly
cited
ways
in
to
variety
establish
of
ways.
Among
exceptionality
the
are:
most
(1)
investigation
or
to
exercise
due
diligence
before
filing suit (see, e.g., Yufa v. TSI Inc., C.A. No. 09-01315,
2014 WL 4071902, at *3 (N.D. Cal. Aug. 14, 2014)); (2) showing
8
the plaintiff should have known its claim was meritless and/or
lacked substantive strength (id.); (3) evidencing the plaintiff
initiated litigation to extract settlements from defendants who
want to avoid costly litigation (Summit Data Sys., LLC v. EMC
Corp., C.A. No. 10-749, 2014 WL 4955689, at *3-4 (D. Del. Sept.
25, 2014)); (4) showing a party proceeded in bad faith (Pure
Fishing,
Inc.
v.
Normark
Corp.,
C.A.
No.
10-2140,
2014
WL
investigation
and
it
did
not
exercise
due
diligence
of
the
circumstances,
the
Court
will
collectively
is
that
the
case
is
exceptional
because
it
is
Frankly, it is not always clear to the Court where the line begins and
ends between each of these arguments.
9
for
theory
to
defeat
Dows
license
or
contract
defense. The better and prudent course of action would have been
to abandon the action.
The Court agrees that simply because summary judgment was
granted does not necessarily equate to the fact that the case is
exceptional.
Nevertheless,
Judge
Bumbs
Opinion
evinces
other
arguments
explanation
were
for
built
why
Judge
upon
Bumb
found
contorted
her
There is
that
Bayers
theor[ies]
and
n.13. And, why Judge Bumb held that the Agreement is subject to
only one reasonable interpretation. Id. at *6 n.6. It is not
insignificant
that
this
ruling
was
issued
after
extensive
reasons
as
inconsistent
10
with
and
contrary
to
the
over
the
record
searching
for
objective
evidence
to
Id. at
*6 n.10.
By
no
means
was
exceptionally weak.
improper
extrinsic
just
Bayers
commercialization
argument
and
ignored
the
crystal
clear
transaction
Justice.
Id.
and
at
now
*9.
sitting
Further,
as
the
an
Iowa
Court
Supreme
rejected
Court
Bayers
MS
Tech.
Id.
at
*10.
Moreover,
11
the
transcript
of
the
Br.
(D.I.
foregoing,
the
358),
Court
Ex.
B,
reaches
Tr.
the
6:1-6.
Given
inescapable
all
of
conclusion
the
that
rights.
testified
it
Id.
was
Bayers
Fed.
ridiculous
12
R.
Civ.
P.
to
view
the
30(b)(6)
witness
Agreement
as
with
Dow
that
Bayers
theories
demanded
suspending
assets,
soybeans
Bayer
at
divestment.
the
OB
retained
insistence
at
3.
This
valuable
commercial
of
beneficiaries
the
explains
in
part
why
rights
to
of
the
Judge
Bumb
Id. at *7 n.12.
only
does
the
October
17,
2013
summary
judgment
the
panels
skepticism
of
Bayers
arguments.
Bayers
objectively
baseless.
See
Pure
Fishing,
Inc.
v.
Normark
best
evidence
came
from
the
deposition
testimony
of
testimony
from
witnesses
presently
or
formerly
associated with Bayer, and not Dow, whose testimony supports the
notion that Bayers case was baseless. These witnesses include
Margaret Keating, Esquire, Dows Vice-President and Associate
General
Counsel,
Agricultural
Bayers
Crops
witnesses
Fed.
who
R.
David
and
Civ.
Morgan,
head
P.
testified
of
Bayers
30(b)(6)
to
the
14
Bayers
former
Head
of
divestment
team,
and
witness
same
(Schulte).
effect
were
Other
Justice
Thus, plaintiffs
2440867,
exceptional
at
*6
(S.D.N.Y)
because
the
(finding
most
basic
the
case
pre-suit
to
be
investigation
WL
3956703,
(concluding
at
that
*3-*4,
the
*14
case
(N.D.
was
Cal.
Aug.
exceptional
12,
2014)
because
the
plaintiffs official had already set their mind that there was
infringement
and
filed
suit
after
failing
to
conduct
an
The
Court
has
found
none.
Rather
than
citing
to
had
good
faith
basis
to
file
its
patent
infringement
and
2008
MS
Tech/Dow
agreements
when
it
filed
its
complaint. Bayer knew or should have known that its patent claim
was undercut by the plain and unambiguous language in these
agreements.
In
addition,
Dows
argument
that
the
denial
of
witnesses
would
have
confirmed
to
Bayer
that
its
is
frivolous.
summary
amendment
judgment
was
The
2011
decision.
produced,
amendment
By
Bayer
played
raising
raises
the
a
no
part
in
the
date
the
2011
strawman
and
then
decision.
The
amendment
is
not
mentioned
in
Judge
it
had
copies
of
these
agreements
before
the
although
arbitration,
tentative
all
and
Bayer
parties
argues
it
acknowledge
non-binding.
The
was
successful
that
Court
the
will
at
the
decision
was
not
give
the
any
procedural
or
evidentiary
constraints
put
on
the
5 Bayer hints that the decision undercuts the validity of the grant of
summary judgment. Pl.s Opp. at 5. The argument is completely meritless as
shown by the fact that Bayer has never moved to undercut the decision.
18
is
an
exceptional
case,
not
what
happened
in
the
parties
arbitration.
The weakness of Bayers attempt to show it had a colorable
basis to pursue its case is also evidenced by the fact that it
relies on documents not part of the summary judgment record.
Pl.s Reply Br. at 9-10 (D.I. 345) (citing Bayers attempt to
use Dows regulatory filings and patent markings and the 2011
contract amendment as new bases to support its theories). If
these documents had any relevance they would have been brought
to the attention of Judge Bumb and the Federal Circuit. Further,
Bayers
efforts
to
show
that
Dow
has
unclean
hands
is
an
sum,
described
plainly
based
herein
on
the
the
Court
non-meritorious
that
totality
finds
no
that
of
the
Bayers
reasonable
circumstances
claim
party
or
was
so
attorney
been
filed.
The
exceptional
nature
of
the
case
is
2. Attorneys Fees
As a threshold matter the parties do not dispute that Dow
is a prevailing party. Having found this case is exceptional,
the
Court
attorneys
computed
turns
fees
by
to
to
determining
award.
multiplying
the
reasonable
Reasonable
the
reasonable
attorneys
hourly
amount
of
fees
are
rate
by
the
17,
$5,857,639.28
2014,
(which
Dow
seeks
includes
total
the
fees
cost
of
in
the
amount
defending
of
Bayers
appeal and preparing its fee petition) for its work from August
2011 through the oral argument on the present motion. Included
in this amount is fees incurred in Bayer I.7 The time expended in
Bayer I will be deducted from Dows fee award because those fees
were not incurred in defending this litigation. Therefore, the
Court will deduct $95,702.49 from the total amount requested by
Dow.8
not see the need to pile on. Therefore, the Court will not address Dows
contention, inter alia, that Bayer (1) engaged in forum shopping and
gamesmanship regarding the service of its complaint, (2) regularly shifted
its theories in this case and Bayer III, and (3) filed a meritless
preliminary injunction motion.
7
20
In
Bates
v.
Board
of
Education
of
the
Capital
School
2000),
the
court
articulated
four
factors
courts
should
reasonably
expended;
(3)
whether
the
attorneys'
hourly
(5)
whether
reasonable.
the
Philips
applicant's
Electronics
request
N.
Am.
for
Corp.
other
v.
costs
Compo
is
Micro
9 Dows counsel includes Orrick, Herrington & Sutcliffe LLP, a New York
firm, and Ashby and Geddes, P.A., Dows local counsel in Delaware.
21
has
submitted
detailed
bills
documenting
the
fees
sua
sponte
because
they
are
excessive,
redundant
or
for
their
[exists]
for
expenditure,
permitting
and
the
declines
trial
court
to
to
do
so,
no
disregard
22
Id.
(citation
omitted).
Second,
in
adversarial
omitted).
fee
award
In
short,
on
its
since
own
initiative.
Bayer
raises
Id.
only
(citation
generalized
Hercules
Reasonable
Inc.,
hourly
835
F.
rates
Supp.
for
771,
786
purposes
(D.
of
Del.
the
1993).
lodestar
reh'g
denied,
684
F.3d
1295
(Fed.
Cir.
2012)).
The
Federal
attorneys
possess
the
special
expertise
necessary
to
community
is
not
wanting
of
intellectual
property
expertise. Thus, the narrow exception to the forum rule does not
apply. Therefore, the forum rate in this matter must be governed
by the rate for Delaware intellectual property attorneys and not
New York. See Chalumeau Power Sys. LLC, 2014 WL 5814062, at *1-2
(applying
Delaware
rates
where
attorneys
were
located
in
Boston).
Based on Third Circuit precedent, and since Bayer has not
challenged
Dows
rates,
the
Court
declines
to
conduct
an
WL
accepting
3624022,
hourly
at
*3
rate
(D.
Del.
requested
Dec.
by
12,
2006)
prevailing
(summarily
party
in
in
exceptional
case).
Given
the
ferocity
of
this
proper
only
in
certain
rare
and
exceptional
cases,
and
exceptional
circumstances).
Bayer
has
not
Dows
request
the
costs
associated
with
Dows
fee
sum,
in
the
Bayer
Court
I
will
+
deduct
$299,047.69
$394,750.18
in
costs)
($95,702.49
from
the
of
December,
2014,
respectfully
recommended
that
Dows
It is only recommended
that Dows motion be denied to the extent the motion asks for
the reimbursement of the fees Dow incurred before June 29, 2012,
and
to
the
extent
Dow
seeks
reimbursement
of
costs.
These