The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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SHOLEM WEISNER and SHMUEL NEMANOV, :
Plaintiffand ; ORDER DENYING MOTION
Involuntary Plaintiff, . fOR ATTORNEY’S FEES
-against- : WITHOUT PREJUDICE
: 20 Civ, 2862 (AKH)
: 23 Civ, 8186 (AKH)
GOOGLE LLC.
Defendant. ©
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ALVIN K. HELLERSTEIN, U.S.D.I.:
Following entry of judgment and denial of Sholem Weisner’s post-trial motions,
Google LLC seeks an award of attorney’s fees under Section 285 of the Patent Act. Whether to award
attorney’s fees under Section 285 is a matter of my “equitable discretion” wherein I consider “the
totality of the circumstances,” including “frivolousness, motivation, objective unreasonableness (both
in the factual and legal components of the case) and the need in particular circumstances to advance
considerations of compensation and deterrence,” Octane Fitness, LLC v. ICON Health & Fitness,
Inc., 572 U.S. 545, 554 n.6 (2014).
However, Weisner timely sought appeal of the final judgment and that appeal remains
pending in the Federal Circuit. In my discretion, I may deny a motion for attorney’s fees while appeal
is pending without prejudice and direct a new filing after the appeal has been resolved. Fed. R. Civ.
P, 54(d)(2) Advisory Committee Notes (1993); accord Tancredi v, Metro. Life Ins. Co., 378 F.3d 220,
225-26 (2d Cir, 2004), “Since the pending [attorneys’ fees] motion turns on which party is the
‘prevailing party’ for purposes of entitlement to fees and costs, it is clear that the resolution of
[Plaintiff's] pending appeal on the merits could potentially impact the Court’s determination of the
fee motion.” Mail Am. Commce’ns, Inc. v. World Healing Ctr. Church, Inc., 2021 WL 3159764, at *2
(S.D.N.Y, June 18, 2021).
Therefore, I deny the motion without prejudice, and direct Google to refile the motion, .
as necessary, after the appeal has been resolved. The Clerk of Court shall terminate ECF Nos. 520
and 522.
SO ORDERED. .
Dated: June Z-2026 LL. EE
New York, New York CALVIN K. HELLERSTEIN
United States District Judge