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Cellport Systems, Inc. v. Peiker Acustic GMBH & Co., KG
United States District Court, D. Colorado
December 20, 2016
CELLPORT SYSTEMS, INC., Plaintiff,
PEIKER ACUSTIC GMBH & CO. KG, Defendant.
Brooke Jackson United States District Judge.
parties ask the Court to determine the amount of
attorney's fees and costs that Peiker must pay Cellport.
Peiker does not challenge the hourly rates charged by
Cellport's attorneys, nor does it dispute that the time
recorded was reasonable for the work done. The dispute is
whether all of the work done was necessary or reasonable in
light of the result obtained and an opportunity Cellport had
as early as May 2011 to settle for approximately what it
ultimately recovered. For the reasons discussed in this
order, the Court awards $1, 340, 235.55 in fees and costs and
directs that the final judgment be amended to reflect that
case arises from a License Agreement into which the parties
entered as of October 1, 2004. Cellport has patents
concerning systems for the use of mobile telephones in
vehicles. It granted Peiker a license to use its patented
technology in Peiker products in exchange for royalties on
terms spelled out in the License Agreement. The parties'
disagreement as to whether Peiker breached the agreement
and/or infringed Cellport's patents spawned eight years
of hotly contested litigation.
recall just a few milestones:
• The case was filed in state court in Boulder, Colorado
on March 9, 2009 and was removed to federal court on April
• On May 25, 2011 the parties participated in mediation
with former state district judge Murray Richtel of the
Judicial Arbiter Group in Denver. They did not reach a
settlement, but Peiker made a substantial settlement offer
that is relevant to the current issue, as I will discuss
• On February 6, 2012 this Court resolved disputes
between the parties concerning interpretation of certain key
terms of the License Agreement. ECF No. 201. Without getting
into details, the Court concluded that the Agreement created
presumptions that Peiker products with certain
characteristics were covered by the Agreement, but that
Peiker could rebut the presumptions if it could show that the
product did not use technology covered by a Cellport patent.
Id. at 5-11. The Court also interpreted various
terms in the relevant patents pursuant to a Markman hearing
that had been conducted earlier. Id. at 15-17.
• The case was tried to the Court September 20-21,
24-25, and 27-29, 2012 with final arguments given on November
• This Court issued its findings, conclusions and
judgment on January 2, 2013. ECF No. 259. In that order the
Court addressed Cellport's claims with respect to seven
Peiker products. It concluded that Cellport was entitled to
royalties as to two of those products and awarded damages,
including prejudgment interest, in the amount of $613, 443.
Id. at 44.
• Although Cellport received a money judgment, it was
for far less than Cellport sought. Cellport appealed. It
challenged this Court's rulings on the five products as
to which Peiker prevailed, its determination of the
appropriate rate of prejudgment interest, and its
determination that neither party prevailed for purposes of a
contractual award of attorney's fees. Peiker filed a
conditional cross-appeal. ECF Nos. 262 and 265.
• The Court of Appeals affirmed in part, reversed in
part, and remanded for further proceedings. Cellport
Systems, Inc. v. Peiker Acustic GMBH & Co., KG, 762
F.3d 1016 (10th Cir. 2014). The court disagreed that the
License Agreement created only rebuttable presumptions and
found that, for the most part, the disputes must be resolved
under the terms of the contract, not on whether the products
infringed Cellport's patents. See Id. at
1021-23. The court noted that Peiker conceded that the
Agreement covered two of the five remaining disputed products
(CKII/CIB's sold to Volkswagen and BMW), but that the
district court did not award royalties due to its finding
that the products did not infringe a Cellport patent. The
court therefore remanded with directions to determine the
royalties due on the CKII/CIB products. Id. at 1023.
The court also directed this Court to consider further
whether royalties were due on the BT-PSC and CKVI products,
but it affirmed this ruling for Peiker as to the BMW SIAB
product. Id. at 1023-28. The court affirmed the
determination of the prejudgment interest rate and directed
this Court to reconsider the prevailing party/attorney's
fees issue “given the new terrain in the case.”
Id. at 1029.
• On remand this Court addressed and resolved a new
dispute concerning the date from which prejudgment interest
should run. ECF No. 301. It determined that royalties are
owed on the CKVI product but not on the BT-PSC. ECF No. 305.
And it determined that Cellport was the prevailing party and
is entitled under the License Agreement to an award of its
reasonable attorney's fees. ECF No. 320. In the latter
order the Court urged the parties to attempt to reach an
agreement on the amount of the fees to be awarded.
Id. at 2-4.
• The parties did not agree on the amount of fees to be
awarded, but they did jointly submit a stipulation that
resolved several matters. ECF No. 325. They stipulated that
Cellport had incurred $2, 501, 607.79 in attorney's fees
and costs from May 8, 2008 (before the lawsuit was filed)
through November 30, 2016, and broke that figure down
according to various stages of the case. Id. at
¶2 and their Exhibit A, ECF No. 325-1. They stipulated
to the corresponding amounts incurred by Peiker. Id.
at ¶4. They informed the Court that they would provide
the itemized billings supporting these numbers at the hearing
scheduled for December 13, 2016 (although at the hearing the
attorneys for both sides acknowledged that they had not
attempted to evaluate or to make an argument based on
individual line items due to the voluminous nature of the
billing sheets). Id. at ¶¶3, 5. Peiker
stipulated that it would not challenge either the
reasonableness of the hourly rates charged by Cellport's
attorney's or the amount of time recorded for the work
Cellport asked them to ...
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