Albright Urged To Triple $13M Verdict In Payment IP Fight

By Tiffany Hu

Law360 (June 10, 2021, 10:23 PM EDT) — U.S. District Judge Alan D. Albright has been asked to triple a $13.2 million jury award against cash register manufacturer NCR Corp. and to tack on attorney fees based on the company’s conduct during a case that “earned rebukes from both the clerk and the court.”

After a Texas federal jury in May found that NCR infringed two CloudofChange LLC’s patents covering web-based point of sale systems, CloudofChange on Wednesday filed motions seeking to up the damages award to $39.6 million, as well as attorney fees and costs.

In asking for enhanced damages, CloudofChange said that NCR appeared to willfully blind itself of an infringement notice letter, and that its subsequent positions on noninfringement and its alleged design-around were “in bad faith, deliberate, consciously wrongful and flagrant.”

CloudofChange added that NCR’s counsel kept canceling depositions and failed to follow the court’s discovery dispute resolution procedures, causing a clerk to warn NCR in a January email that “the court does not look kindly upon delaying requests for a hearing.”

“In this litigation, NCR counsel earned rebukes from both the clerk and the court. NCR deliberately and in bad faith increased litigation costs through its conduct in discovery,” the motion states. “During trial, NCR and its witnesses were repeatedly rebuked by the court.”

CloudofChange also cited the clerk’s remarks in its attorney fee motion, saying that such “delay and unwillingness to follow the court’s procedures are clearly unreasonable” and merit the fees.

CloudofChange attorney John Barr of Patterson & Sheridan LLP told Law360 in an email Thursday that the court has the discretion to enhance the damages by up to three times the actual amount, and his client believes that the increase is “warranted” in this case.

Counsel for NCR did not immediately return a request for comment Thursday.

CloudofChange sued NCR in August 2019 in the Western District of Texas, claiming its founders invented a web-based point of sale system and that a point of sale system NCR sells infringes two of their patents covering the technology.

During opening arguments last month, Barr told jurors that unlicensed use of its patents allowed NCR to rake in more than $100 million in revenue since 2016. He had calculated damages to be as much as $20 million.

But NCR attorney Charles Baker of Locke Lord LLP disputed the notion, arguing that his client’s system didn’t infringe the patents because it runs on an app server, not a web server, and that the patents were invalid.

The jury ultimately decided in CloudofChange’s favor, finding that NCR willfully infringed the two patents rejecting NCR’s invalidity arguments.

The patents-in-suit are U.S. Patent Nos. 9,400,640; and 10,083,012.

CloudofChange is represented by John H. Barr Jr. of Patterson & Sheridan LLP.

NCR is represented by Charles Baker of Locke Lord LLP.

The case is CloudofChange LLC v. NCR Corp., case number 6:19-cv-00513, in the U.S. District Court for the Western District of Texas.

–Additional reporting by Andrew Karpan. Editing by Adam LoBelia.

All Content © 2003-2021, Portfolio Media, Inc.