Free Memorandum - District Court of Arizona - Arizona

EXHIBIT A
Case 2:OO—cv-00663-HRH Document 756-2 Filed O4/17/2006 Page1 0f4

DECLARATION OF ANTHONY R. ZEULI
I OOOO AnthonyiR. Zeuli declares that: F F I F F 7 0 7
I. I am a licensed attorney in good standing with the State Bar of Minnesota,
and a partner in the lirm of Merchant & Gould, located in Minneapolis. I have also
served as lead counsel for Defendant Nash Finch ("Nash Finch") in Case No. CIV
000663 PHX PGR currently pending before the United States District Court for the
District of Arizona (the "Lawsuit"). I make this declaration in support ofNash Finch’s
Motion for Award of Attomeys’ Fees against Plaintiff Lemelson Medical, Education &
Research Foundation (“Lemelson") whose claims against Nash Finch for patent
infringement in Case No. 000663 PHX PGR pending before the United States District
Court for the District of Arizona (the "Lawsuit") have been dismissed with prejudice by
the Court’s Order dated February 6, 2006.
2. As set forth in the documentation submitted herewith, the following
attomeys ofmy firm worked on the Lawsuit, billing the following hours for legal services
to Nash Finch:
Attorney Time Billed
Terry l<. Qualey 6.53
Anthony R. Zeuli 12.30
In addition, there were 6.30 paralegal hours charged to Nash Finch in connection with A
this action.
A. Background of Attorneys for Whom Fees Are Sought
3. Terry K. Qualey Mr. Qualey is no longer with Merchant & Gould.
When he was employed with Merchant & Gould, he was a partner handling client
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counseling and litigation. Mr. Qualey was previously an Intellectual Property attorney
-. .Wlfh.3.Mi L . C L. oooo oooooooo s
4. Anthony R. Zeuli I am a trial lawyerlspecializing in Intellectual Property
litigation, including patent and trademark litigation. l also have considerable experience
before the Court of Appeals for the Federal Circuit. I have handled patent and copyright
litigation in China for multiple clients. I write a regular column on IP law for the
publication Bench & Bar as well as periodic articles and talks on issues related to patent
, litigation, especially patent claim construction. Prior to joining M erchant & Gould. I was
a physics engineer at Argonne National Laboratory, where I was involved in numerous
engineering projects associated with the study of nuclear physics. ·
B. Merchant and G0uld’s Representation of Nash Finch i
5. Merchant & Gould has represented Nash Finch since 198 l. We do not
have a formal written fee agreement with Nash Finch, which has orally agreed to pay our
finn’s customary and prevailing hourly rates on this matter.
C. Reasonableness of the Rates Charged
6. As reflected on Exhibit B attached herewith, the hourly billing rates
charged by Merchant & Gould to Nash Finch during the course ofthe Lawsuit, from A
200l -2006, varied from $325 to $390 per hour for attorneys.
7. The above-noted billing rates are reasonable and relatively moderate in
comparison with the prevailing rates for patent and intellectual property litigators in ·
Minneapolis where our finn is located. For example, current billing rates for senior P
patent litigators in Minneapolis firms are typically from $400 to $500 per hour and even
higher.
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g U D. Reasonableness of Time Spent
g ggggg g gg g gg g gggg gg g total number of hours billed by all Merchant
& Gould attorneys and paralegals in connection with this matter, and for which an award
of attomeys’ fees is sought, was only 25.13 hours over a period of nearly six years. L
During this time, our attomeys not only reviewed the patents at issue but also analyzed l
the client’s technology to determine the merits of the infringement claims and
participated actively in the proceeding in the case such as the motion to stay litigation in · _
view of the Symbol v. Lemelson litigation in Nevada. Moreover, our attomeys monitored
D all developments in the Symbol v. Lemelson case and reported to the client thereon, and
ultimately counseled the client as to how to proceed in view of Lemelson’s defeat and the
invalidation ofits patents (including making the present motion for attorneys’ fees in
response to Lemelson’s dismissal ofits case). It is submitted that the cumulative total of
25.13 hours billed by Merchant & Gould throughout the course ofthis action is clearly
modest and reasonable on its face, and probably substantially less time than would have
been billed by comparable firms handling the same matter.
9. I declare under penalty of perjury that the above statements are true to the
best of my knowledge and belief. ·
. DATED this 17th day of April, 2006. `___
Anthony R. euli
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