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Defendants Lose on Costs for Video Exhibit

March 13, 2002
O'Connor Ph.D., Steven P.

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Last Month at the Federal Circuit - April 2002

Judges: Prost (author), Mayer, and Dyk (dissenting)

[Appealed from: S.D. Ohio, Judge Sandra S. Beckwith]

In Kohus v. Cosco, Inc., No. 01-1358 (Fed. Cir. Mar. 13, 2002), the Federal Circuit reversed an award to Defendants, Cosco, Inc. and others (“Cosco”), of costs in the amount of $12,950 relating to a video exhibit.

Louis Kohus sued Cosco on his U.S. Patent No. 4,688,280 directed to a portable playpen with a foldable frame, alleging that Cosco’s manufacture and sale of a line of “Zip ‘N Go” playyards infringed the patent. Cosco filed a motion for SJ of noninfringement, which relied on an expert’s report that referred to and included a video exhibit that disclosed the structure and operation of the accused playyards and the patented playpen. After construing the claims, the district court granted Cosco’s motion for SJ, which the Federal Circuit affirmed in Kohus v. Cosco, Inc., 250 F.3d 758 (Fed. Cir. 2000) (per curiam).

Having prevailed on appeal, Cosco filed a bill of costs. The district court awarded Cosco costs, including the cost of the video exhibit. Although the district court decided the case based on its claim construction, it noted that it would have considered the exhibit, which Cosco relied upon in making its motion for SJ. Finding that the video exhibit was a necessity for Cosco in making its motion, the court held that an award of costs was appropriate under 28 U.S.C. § 1920 (1994), which defines the costs that may be awarded under Fed. R. Civ. P. 54(d).

Applying the law of the Sixth Circuit, the Federal Circuit reversed the award of costs as an abuse of discretion. The Federal Circuit noted that section 1920 does not explicitly authorize an award of costs for a video exhibit, but subsection (4) does authorize costs for exemplification and copies of papers necessarily obtained for use in the case. The Sixth Circuit has not previously addressed whether subsection (4) encompassed a video exhibit. The Federal Circuit held that it does not.

Noting that a video is obviously not a copy of paper, the Federal Circuit considered whether the video exhibit was an “exemplification” under section 1920. Citing the legal definition of an exemplification as “[a]n official transcript of a public record, authenticated as a true copy for use as evidence,” the Federal Circuit ruled that a video exhibit is not an exemplification. The Federal Circuit rejected Cosco’s argument that “exemplification” should be construed broadly to include demonstrative evidence such as its video animation. Relying on Sixth Circuit precedent denying an award of costs for preparing demonstrative models because these costs are not authorized by section 1920, the Federal Circuit reasoned that a video exhibit was no different than a physical model and, therefore, an award of costs for video exhibits is also outside the scope of the district court’s authority. The Federal Circuit also noted that its conclusion was consistent with Eleventh Circuit precedent holding that a computer animation is not an exemplification.

Since the video exhibit prepared by Cosco was not an exemplification under section 1920, the district court had no authority to award costs for it. Accordingly, the district court had erred by taxing the cost of the video to Kohus.

Judge Dyk dissented because he believed that Sixth Circuit precedent would allow the cost of preparing an original video, as opposed to the cost of copying or authenticating a video. This cost, he concluded, does not fall within, and thus is not precluded by, section 1920.