This article originally appeared in our sibling publication The Recorder.
Oracle v. Google could still be a fight worth millions in attorney fees.
Oracle Corp. took Google Inc. to court on a quest for eye-popping damages in the first of the smartphone wars to go to jury trial. Oracle lost on almost every claim and can only get a fraction of the billions it once sought. So observers say they expect Google to try to recoup the small fortune it surely paid Keker & Van Nest and two other firms to do battle with the likes of David Boies and top Morrison & Foerster IP litigators. But it won’t be an easy call for the judge, who has complete discretion to give anyone a dime.
“They’ve got a shot at it,” says Mark Lemley, a Stanford law professor and IP litigator at Durie Tangri. (Google is a firm client, but he was not involved in the case.) Nothing has yet been filed in court, and neither party would comment. But observers say Google would likely petition for fees after U.S. District Judge William Alsup issues a final order in the case, which could come some time after a Wednesday hearing.
A battle over legal bills would offer tantalizing details of the fee arrangement between Google and its team, led by Robert Van Nest, and put a public price tag on what it can cost to engage in complex, high-stakes IP cases. And if Oracle makes its own bid to pursues attorney fees, which observers said isn’t entirely out of the question since it prevailed on two small claims, it could expose how much it costs to retain Boies, the famed chairman of Boies, Schiller & Flexner who tried the case with Michael Jacobs of MoFo and a small army of supporting players.
“This could end up being a huge fight over attorneys fees,” says Christopher Seaman, a former IP lawyer in Chicago who begins teaching at Washington and Lee University School of Law in Virginia in July. The petition would come under a provision of the Copyright Act. Unlike in other areas of civil litigation, either the prevailing defendant or plaintiff can seek reimbursement for reasonable fees in copyright cases.
There’s one recent high-profile example of a prevailing defendant winning a ruling in favor of big money. In the Barbie doll battle, U.S. District Judge David Carter in Santa Ana awarded Bratz maker MGA Entertainment Inc. $105.6 million in fees and another $31.6 million in costs after it fended off infringement claims brought by Barbie maker Mattel Inc. Mattel’s lawyers are contesting the award at the U.S. Court of Appeals for the Ninth Circuit. The Barbie-Bratz case was a longer fight, and the award is to cover work done by 10 firms, so the fees could be north of what Google would seek. But maybe not.
Take, for example, a deal reached in another one of Oracle’s copyright battles. SAP, which admitted to stealing Oracle software, agreed to pay $120 in fees in exchange for Oracle dropping its quest for certain damages, according to confidential information leaked in 2010.
