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Eastern District of New York (E.D.N.Y.)
What You Say May Be Held Against You: Judge Chen Finds Case Exceptional Based on “Borderline Frivolous” Arguments and Counsel’s Conduct
September 16, 2025
Lewis V. Popovski and George S. Soussou
On August 29, 2025, United States District Judge Pamela K. Chen (E.D.N.Y.) granted Plaintiff Tools Aviation, LLC’s (“Plaintiff”) motion for reasonable attorney’s fees, finding the case “exceptional” pursuant to 35 U.S.C. § 285. In doing so, the Court did not even need to “reach the factual question of willful infringement.”
Plaintiff filed suit against Defendants Digital Pavilion Electronics LLC, East Brooklyn Labs LLC, and Firemall LLC (collectively, “Defendants”) for infringement of three patents directed to “battery caddies.” On September 30, 2024, the Court granted Plaintiff’s summary judgement motion, holding that Defendants infringed the three patents as a matter of law. Plaintiff then moved for attorney’s fees, arguing that Defendants' litigation conduct made the case exceptional. The Court agreed.
Specifically, the Court found Defendants’ defenses “both unsuccessful and remarkably weak.” The Court rejected Defendants’ invalidity defenses as “simply incorrect” and held that “Defendants’ own admissions are material evidence that would preclude a reasonable jury from finding non-infringement.” The Court also found that Defendants’ submissions to the Court were “devoid of ‘meaningful analysis or application of relevant legal standards to the facts at hand’” and “lacking in citations to legal authority and meaningful analysis.” As a result, “even in the absence of an affirmative finding of willful infringement, Defendants’ litigating positions were notably weak – and at times borderline frivolous – which weighs in favor of finding that this case” was exceptional. The Court also found counsel for Defendants were “unprofessional” and inappropriately engaged in personal attacks on opposing counsel and witnesses. “It is Defendants who exceeded the bounds of zealous client advocacy and wasted both Plaintiff’s and the Court’s time with ad hominum attacks and undeveloped legal arguments. This is precisely the type of misconduct the Court may consider in determining whether a case is ‘exceptional.’”
The case is Tools Aviation, LLC v. Digital Pavilion Elecs. LLC, Case No. 20-cv-2651 (PKC) (VMS) (E.D.N.Y. Aug. 29, 2025)
Firm Highlights
Blog Post
“Not an Arm of New Jersey”: Judge Gardephe Denies Motion for Summary Judgment Based on Eleventh Amendment Immunity
On March 30, 2026, United States District Judge Paul G. Gardephe (S.D.N.Y) denied Defendant New Jersey Transit Corporation’s (“NJ Transit”) motion for summary judgment on all of Plaintiff Bytemark, Inc.’s (“Bytemark”) claims. Bytemark, Inc. v. Xerox Corp., et al, No. 17-cv-1803 (S.D.N.Y. March 30, 2026).
Bytemark provides a secure mobile ticketing platform for transit, tourism, and events. Bytemark has sued several defendants, including NJ Transit, for patent infringement, breach of contract, trade secret misappropriation, unfair competition, and unjust enrichment. Bytemark alleges that two defendants, after entering into confidentiality agreements with Bytemark, used Bytemark’s intellectual property and trade secrets to secure a contract with NJ Transit for mobile ticketing and cut Bytemark out of the bidding process. Id. at *2–4.
In October 2022, NJ...
Blog Post
Arbitration and Bankruptcy: Can a Debtor that is Party to an Arbitration Agreement Lack Authority to Arbitrate Core Bankruptcy Claims?
The Federal Arbitration Act (FAA) was enacted to require courts to enforce parties’ agreements to arbitrate disputes. Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213 (1985). More recently, the Supreme Court has said that “[t]he federal policy is about treating arbitration contacts like all others, not about fostering arbitration.” Morgan v. Sundance, Inc., 596 U.S. 411, 418 (2022).
In bankruptcy cases, a recurring issue that litigants raise is whether a conflict exists between the FAA and the requirements of the U.S. Bankruptcy Code. Judges will consider if sending parties to arbitration in light of the arbitration clause at issue and the specific claims asserted conflicts with bankruptcy jurisdictional rules. For instance, courts wrestle with how the assertion of bankruptcy-derived core...
Publication
Executive Order Addressing Anticompetitive Behavior In The Food Supply Chain Provides Insight On The Trump Administration’s Antitrust Enforcement Priorities
In December 2025, President Donald Trump issued an Executive Order, titled “Addressing Security Risks from Price Fixing and Anti-Competitive Behavior in the Food Supply Chain,” signaling in no uncertain terms that his Administration intends to crack down on collusion in food-related industries. The Order, among other things, directs the Department of Justice (“DOJ”) and the Federal Trade Commission to create “Food Supply Chain Security Task Forces” that will investigate domestic entities to identify any anticompetitive behavior in U.S. food supply chains, as well as any ways in which foreign entities may be increasing the cost of U.S. food products. The Order underscores the Executive Branch’s existing focus on the food sector, with DOJ’s Antitrust Division having formalized a partnership with...
Firm News
Firm Achieves Significant Lanham Act Win for Johnson & Johnson
On April 17, 2026, Patterson Belknap secured a significant victory for our clients, Johnson & Johnson and Janssen Biotech, Inc. (“J&J”), when the U.S. District Court for the Southern District of New York denied a preliminary injunction in a Lanham Act suit filed by Bayer HealthCare LLC (“Bayer”).
The dispute concerned a retrospective scientific study sponsored by J&J that compared the real-world efficacy of both companies’ prostate cancer medications, concluding that J&J’s ERLEADA was associated with a reduction in overall risk of death approximately 50% greater than Bayer’s NUBEQA. Bayer alleged that the study was methodologically flawed, and that J&J’s publication of the study results therefore constituted “false advertising.” The statements at issue included a presentation given by the study authors at a medical...
Event
Four Firm Partners to Speak at Georgetown Law Lifelong Learning's 2026 Conference on Representing & Managing Tax-Exempt Organizations
On Thursday, April 23 and Friday, April 24, Partners Laura Butzel, Robin Krause, Susan Vignola, and Justin Zaremby will speak at Georgetown Law Lifelong Learning's 2026 Conference on Representing and Managing Tax-Exempt Organizations.
On April 23 at 4:45pm, Ms. Krause will speak on a panel titled "Navigating Attorney General Oversight and Investigations," discussing the scope of Attorney General oversight, an overview of the current landscape and share guidance on approaching Attorney General investigations and inquiries.
On April 24 at 10:30am, Ms. Butzel will speak on a session titled "The Heightened Focus on Terrorism and the Impact on Tax-Exempt Organizations." Ms. Butzel will join a panel for a program that will focus on the historic use of anti-terrorism rules and enforcement mechanisms in the...
Blog Post
Please Leave a Message: Judge Hellerstein Finds Claims Directed to Missed-Call Categorization to Be Abstract
Recently, District Judge Alvin K. Hellerstein (S.D.N.Y.) granted Defendant CloudTalk.io, Inc.’s (“CloudTalk”) motion to dismiss Missed Call, LLC’s (“Missed Call”) complaint, finding that the asserted patent was directed to an abstract idea and lacked an inventive concept. Missed Call, LLC v. CloudTalk.io, Inc., No. 25 Civ. 7776 (S.D.N.Y. Mar. 12, 2026).
Missed Call is the assignee of U.S. Patent No. 9,531,872 (“the ’872 Patent”), which is directed to a communication device that indicates whether a missed call is urgent or non-urgent based on how the call was terminated. Id. at *1. Specifically, calls terminated by a network are categorized as urgent, and calls terminated by the caller are categorized as non-urgent. Id. Missed Call accused CloudTalk of infringing the ’872 Patent....
Event
Firm Partners to Speak at the American Conference Institute's 2026 Paragraph IV Disputes Conference
On April 22, Partners Lachlan Campbell-Verduyn and Andrew D. Cohen will speak at the American Conference Institute's 2026 Paragraph IV Disputes Conference, the preeminent forum for pharmaceutical patent litigation.
At 9:45am, Dr. Campbell-Verduyn will speak on a panel titled "Avoiding Costly Conception and Inventorship Missteps in Pharmaceutical Patent Cases." With Tom Irving and Jonathan James Underwood, she will discuss recent cases and best practices around questions of inventorship and conception.
At 3:30pm, Dr. Cohen will speak on a program titled "Promise and Peril for Patents: Navigating Mandated Disclosures and Prior Art Pitfalls." He will join Angie Verrecchio (Senior Counsel, Patent Litigation, Johnson & Johnson), Ryan Johnson, and Ricardo Camposanto to explore whether or not clinical trials and disclosures of information are...
Publication
The Administration Is Illegally Firing Court-Appointed US Attorneys
The U.S. Department of Justice isn’t winning many friends on the front lines of the federal judiciary, the U.S. district courts. Besides repeatedly violating court orders, the DOJ is also thumbing its nose at the district courts when they attempt to appoint qualified persons to serve as U.S. attorneys in the absence of a Senate-confirmed nominee. Recent headlines tell the story: “U.S. Attorney Chosen to Replace Trump Pick Is Quickly Fired by White House” and "DOJ fires US attorney hours after judges appoint him."
The terminations by Todd Blanche, the deputy U.S. attorney general, are graceless and bombastic:
“Judges don’t pick U.S. Attorneys, @POTUS does. See Article II of our Constitution. You are fired, Donald Kinsella.”
"Here we go again. [Eastern District of Virginia]...
Publication
Ninth Circuit Finds First Amendment Right to Donate to Patient Assistance Charities, With Possible Impact on Enforcement of Federal Anti-Kickback Statute
Last week, the Ninth Circuit issued a published decision striking down California’s Assembly Bill 290 (“AB 290”) on First Amendment grounds. See Fresenius Med. Care Orange Cnty., LLC v. Bonta, No. 24-3654 (9th Cir. Apr. 7, 2026). Its central holding was that providers of medical services have a protected First Amendment right to make donations to patient assistance charities that engage in expressive activity, even if those donations are driven by commercial self-interest. Although the case did not directly involve the federal Anti-Kickback Statute (“AKS”)—or any federal statute—it arguably calls into question the constitutionality of AKS proceedings often brought against pharmaceutical manufacturers that make analogous donations to patient assistance charities out of alleged self-interest.
AB 290, the California statute at issue...
Firm News
Firm Secures Appellate Victory on Behalf of Brita Products Company
On April 16, 2026, the firm secured an appellate victory on behalf of Brita Products Company ("Brita"), a unit of The Clorox Company, in a putative class action challenging the labeling of Brita's water filtration products. The U.S. Court of Appeals for the Ninth Circuit upheld a lower court ruling dismissing the complaint, agreeing that the product labeling contained no misstatements and would not mislead a reasonable consumer.
Plaintiff originally sued Brita in the U.S. District Court for the Central District of California, alleging that certain representations on the products’ labels, such as “Cleaner, Great-Tasting Water,” implied that the filters fully remove all contaminants from tap water or reduce them to levels below lab detection limits. The district court granted Brita’s motion to dismiss...
Blog Post
“Not an Arm of New Jersey”: Judge Gardephe Denies Motion for Summary Judgment Based on Eleventh Amendment Immunity
On March 30, 2026, United States District Judge Paul G. Gardephe (S.D.N.Y) denied Defendant New Jersey Transit Corporation’s (“NJ Transit”) motion for summary judgment on all of Plaintiff Bytemark, Inc.’s (“Bytemark”) claims. Bytemark, Inc. v. Xerox Corp., et al, No. 17-cv-1803 (S.D.N.Y. March 30, 2026).
Bytemark provides a secure mobile ticketing platform for transit, tourism, and events. Bytemark has sued several defendants, including NJ Transit, for patent infringement, breach of contract, trade secret misappropriation, unfair competition, and unjust enrichment. Bytemark alleges that two defendants, after entering into confidentiality agreements with Bytemark, used Bytemark’s intellectual property and trade secrets to secure a contract with NJ Transit for mobile ticketing and cut Bytemark out of the bidding process. Id. at *2–4.
In October 2022, NJ...
Blog Post
Arbitration and Bankruptcy: Can a Debtor that is Party to an Arbitration Agreement Lack Authority to Arbitrate Core Bankruptcy Claims?
The Federal Arbitration Act (FAA) was enacted to require courts to enforce parties’ agreements to arbitrate disputes. Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213 (1985). More recently, the Supreme Court has said that “[t]he federal policy is about treating arbitration contacts like all others, not about fostering arbitration.” Morgan v. Sundance, Inc., 596 U.S. 411, 418 (2022).
In bankruptcy cases, a recurring issue that litigants raise is whether a conflict exists between the FAA and the requirements of the U.S. Bankruptcy Code. Judges will consider if sending parties to arbitration in light of the arbitration clause at issue and the specific claims asserted conflicts with bankruptcy jurisdictional rules. For instance, courts wrestle with how the assertion of bankruptcy-derived core...
Publication
Executive Order Addressing Anticompetitive Behavior In The Food Supply Chain Provides Insight On The Trump Administration’s Antitrust Enforcement Priorities
In December 2025, President Donald Trump issued an Executive Order, titled “Addressing Security Risks from Price Fixing and Anti-Competitive Behavior in the Food Supply Chain,” signaling in no uncertain terms that his Administration intends to crack down on collusion in food-related industries. The Order, among other things, directs the Department of Justice (“DOJ”) and the Federal Trade Commission to create “Food Supply Chain Security Task Forces” that will investigate domestic entities to identify any anticompetitive behavior in U.S. food supply chains, as well as any ways in which foreign entities may be increasing the cost of U.S. food products. The Order underscores the Executive Branch’s existing focus on the food sector, with DOJ’s Antitrust Division having formalized a partnership with...
Firm News
Firm Achieves Significant Lanham Act Win for Johnson & Johnson
On April 17, 2026, Patterson Belknap secured a significant victory for our clients, Johnson & Johnson and Janssen Biotech, Inc. (“J&J”), when the U.S. District Court for the Southern District of New York denied a preliminary injunction in a Lanham Act suit filed by Bayer HealthCare LLC (“Bayer”).
The dispute concerned a retrospective scientific study sponsored by J&J that compared the real-world efficacy of both companies’ prostate cancer medications, concluding that J&J’s ERLEADA was associated with a reduction in overall risk of death approximately 50% greater than Bayer’s NUBEQA. Bayer alleged that the study was methodologically flawed, and that J&J’s publication of the study results therefore constituted “false advertising.” The statements at issue included a presentation given by the study authors at a medical...
Event
Four Firm Partners to Speak at Georgetown Law Lifelong Learning's 2026 Conference on Representing & Managing Tax-Exempt Organizations
On Thursday, April 23 and Friday, April 24, Partners Laura Butzel, Robin Krause, Susan Vignola, and Justin Zaremby will speak at Georgetown Law Lifelong Learning's 2026 Conference on Representing and Managing Tax-Exempt Organizations.
On April 23 at 4:45pm, Ms. Krause will speak on a panel titled "Navigating Attorney General Oversight and Investigations," discussing the scope of Attorney General oversight, an overview of the current landscape and share guidance on approaching Attorney General investigations and inquiries.
On April 24 at 10:30am, Ms. Butzel will speak on a session titled "The Heightened Focus on Terrorism and the Impact on Tax-Exempt Organizations." Ms. Butzel will join a panel for a program that will focus on the historic use of anti-terrorism rules and enforcement mechanisms in the...
Blog Post
Please Leave a Message: Judge Hellerstein Finds Claims Directed to Missed-Call Categorization to Be Abstract
Recently, District Judge Alvin K. Hellerstein (S.D.N.Y.) granted Defendant CloudTalk.io, Inc.’s (“CloudTalk”) motion to dismiss Missed Call, LLC’s (“Missed Call”) complaint, finding that the asserted patent was directed to an abstract idea and lacked an inventive concept. Missed Call, LLC v. CloudTalk.io, Inc., No. 25 Civ. 7776 (S.D.N.Y. Mar. 12, 2026).
Missed Call is the assignee of U.S. Patent No. 9,531,872 (“the ’872 Patent”), which is directed to a communication device that indicates whether a missed call is urgent or non-urgent based on how the call was terminated. Id. at *1. Specifically, calls terminated by a network are categorized as urgent, and calls terminated by the caller are categorized as non-urgent. Id. Missed Call accused CloudTalk of infringing the ’872 Patent....
