Brigham and Women 2019s Hospital, Inc. et al. v. Perrigo Company et al. (13-cv-11640).

Following the Federal Circuit 2019s affirmance of JMOL that the patent-in-suit was not infringed, Perrigo sought $90,637.02 in costs. Brigham and Women 2019s objected to virtually all of the requested costs and asserted that the case should be treated as a 201cmixed-result 201d case because Brigham 201cprevailed 201d on every issue save infringement (i.e., prevailed on standing, laches, invalidity, marking and damages). Judge Zobel rejected this argument, finding that Brigham had not prevailed on its sole claim of infringement and that, as a result, Perrigo was entitled to costs under F.R.C.P. 54(d). Judge Zobel did not award the full amount sought, however; she denied pro hac vice motion fees as not allowable in this district, denied costs associated with depositions that were not used in trial or in the post-trial briefing and denied all costs associated with videotaping or obtaining rough transcripts, finding these costs were not taxable absent prior permission. She also denied costs associated with the use of realtime transcripts, finding these to also not be 201cnecessary 201d within the meaning of 28 U.S.C. 00a7 1920(2). Judge Zobel refused to award $35,298 in costs associated with the use of a graphic designer to prepare charts, figures and demonstratives used at trial, based on both the excess amount of time spent in their preparation and a lack of evidence supporting these costs. Finally, Brigham 2019s had, in its motion seeking refusal of the Bill of Costs, sought expert witness fees under F.R.C.P. 26(b)(4)(E), which generally requires a party seeking expert discovery to pay the expert for the time spent in responding. Judge Zobel noted that expert discovery had concluded three years earlier with neither party seeking fees, and denied the request as untimely. In total, she awarded $22,843.48 to Perrigo.