Trading Techs. Int'l, Inc. v. eSpeed, Inc., No. 04 C 5312, Slip Op. (N.D. Ill. Oct. 29, 2010) (Dow, J.).

Judge Dow denied defendants' (collectively "eSpeed") motion to strike or stay consideration of plaintiff Trading Technologies' ("TT") bill of costs, and awarded TT $381,831.04 in costs.* Because TT received a damages award at trial, TT was the prevailing party and costs were warranted, absent TT's trial misconduct or eSpeed's inability to pay. The fact that TT lost on the issue of eSpeed's alleged willfulness did not change TT's status as the prevailing party, nor did the fact that eSpeed was found not to infringe based upon several of its software packages. The Court had previously stayed a determination of the bill of costs pending the Federal Circuit appeal. So, with the appeal complete, there was no reason left to delay the Court's decision.

The Court then turned to the bill of costs. The following determinations were of particular note:

The Court awarded all undisputed witness travel, attendance and subsistence costs, totaling approximately $21,000. The Court denied travel costs for a trial witness that was flown to trial from Switzerland, rather than from his home in Ohio. Witness fees are only allowed for the shortest possible route from the witness's residence.

The Court awarded videography costs only for depositions of foreign witnesses that TT disclosed as potential trial witnesses.

Court reporter appearance fees were denied because they are only allowed to the extent the fee plus the per-page rate charged does not exceed the Judicial Conference's limit. In this case, the per page rate was already more than the allowed per-page recovery.

Because hearing transcripts played a significant role in the case, the Court awarded TT the allowable hearing transcript fees.

The Court awarded 25% of TT's photocopying request. The reduction accounted for various non-copying charges, such as OCR, blowbacks, etc. and multiple copies of some documents. Recovery is only allowed for a single copy of a document, in most cases.

No costs were awarded for translation because § 1920(6) does not authorize recovery of translation costs, except for "check interpreters" used at trial to dispute certain interpretations.

The Court refused to apportion TT's costs based upon the portion of the case that eSpeed won (summary judgment of noninfringement) versus the jury award that TT won.

* Click here for much more on this case in the Blog's archives.