Free Memorandum - District Court of Arizona - Arizona

EXHIBIT A
Case 2:OO—cv-00663-HRH Document 755-2 Filed O4/17/2006 Page1 0f4

_ DECLARATION OF ANTHONY R. ZEULI
AAAA Anthony R. Zeulideelares that: A A AA A A
l. I am a licensed attomey in good standing with the State Bar of
Minnesota, and a partner in the tinn of Merchant & Gould, located in Minneapolis. I
have also served as lead counsel for Defendant Ingram Industries ("Ingram") in Case
No. CIV 00()663 PHX PGR currently pending before the United States District Court
for the District of Arizona (the "Lawsuit"). I make this declaration in suppon of
Ingram’s Motion for Award ofAttorneys’ Fees against Plaintiff Lemelson Medical,
Education & Research Foundation ("Lemelson") whose claims against Ingram for
patent infringement in Case No. 000663 PHX PGR pending before the United States L
District Court for the District of Arizona (the "Lawsuit") have been dismissed with
prejudice by the Cou1“t’s Order dated February 6, 2006.
2. As set forth in the documentation submitted herewith, the following
attorneys of my finn worked on the Lawsuit, billing the following hours for legal sewices
to Nash Finch:
Attorney Time Billed
Terry K. Qualey 7.60
Anthony R. Zeuli 9.40
In addition, there were 5.05 paralegal hours charged to Ingram in connection with this
action.
A. Background of Attornevs for Whom Fees Are Sought
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3. Terrv K. Qualev Mr. Qualcy is no longer with Merchant & Gould. A l
When he was employed with Merchant & Gould, he was a partner handling client
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with 3M. » ·
4. Anthony R. Zeuli I am a trial lawyer specializing in Intellectual Property
litigation, including patent and trademark litigation. I also have considerable experience I
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 tojoining Merchant & 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 G0uId’s Representation of Ingram
5. Merchant & Gould has represented Ingram since 2000. We do not have a
fonnal written fee agreement with Ingram, which has orally agreed to pay our Hrm’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 Ingram during the course ofthe Lawsuit, from 2001-
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 finrr is located. For example, current billing rates for senior
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patent litigators in Minneapolis finns are typically from $400 to $500 per hour and even
higher.
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8. As reflected in Exhibit B, the total number ofhours billed by all Merchant
& Gould attomeys and paralegals in connection with this matter, and for which an award
of attorneys’ fees is sought, was only about 22.05 hours over a period ofnearly six years.
During this time, our attorneys not only reviewed the patents at issue but also analyzed 0
the client’s technology to determine the merits ofthe 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 attorneys monitored
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 of its patents (including making the present motion for attorneys’ fees in
response to Lemelson’s dismissal ofits case). lt is submitted that the cumulative total of
22.05 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 ofmy knowledge and belief
DATED this 17th day ofApril, 2006. é é'
Anthony R. euli
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