A&O faces costs post-mortem after BlackBerry judgment

BlackBerry manufacturer Research In Motion (RIM) is set to scrutinise the details of the £5m-plus bill that Allen & Overy (A&O) presented it with following a patent battle with wireless technology company Visto.

Mr Justice Floyd handed down a critical judgment in the High Court last week (17 April) that slammed the magic circle firm for billing almost £5.2m and the equivalent of nine man-years in costs for a five-day trial.

RIM licensing chief Tom Sanchez told The Lawyer he was pleased with A&O’s work, which resulted in the correct result from his point of view – getting a Visto patent invalidated. However, he added that he would take Floyd J’s criticisms “under advisement”.

“We’ll do a post-mortem. It would be foolish not to see what could be done better,” said Sanchez.

Sanchez said A&O had won the instruction on the back of a beauty parade that saw longstanding advisers A&O and Lovells emerge as the most attractive candidates. But Lovells was precluded from gaining the instruction as it had already been instructed on Qualcomm v Nokia (2008), which ran almost concurrently with RIM v Visto (2008).

“If you have the same set of lawyers conducting two major cases back to back, that’s a bit of an issue,” Sanchez told The Lawyer.

The cost ruling in Qualcomm, which was also in front of Floyd J, was announced four days before RIM. Qualcomm, which involved two patents and which took place over three weeks, saw Bird & Bird and Lovells bill around £6m each.

The RIM case involved one patent and lasted five days, with Visto’s law firm Taylor Wessing billing its client £1m – a fifth of the costs accumulated by A&O.

Gary Moss, who led the Taylor Wessing team, said: “I don’t see how they could have racked up all those hours. Every time we were in court they seemed to outnumber us two to one at least.”

Nicola Dagg, who led the A&O team for RIM, said the final costs also reflected a battle over two other patents, which was resolved before the trial took place.

“The reason the RIM-Visto trial was a little shorter was that two of the patents had gone out of the action before the trial, but all of the work was done through the 15 months before the litigation for those other patents,” said Dagg.

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