Sovereign immunity is the right of the government to not be sued absent waiver or consent. The federal government retains sovereign immunity rights.[1] States, through the Eleventh Amendment, also have sovereign immunity in federal courts.[2] Indian tribes also have sovereign immunity absent waiver or congressional abrogation.[3] This final type, tribal sovereign immunity, has never been …
Author: Yonaxis
Fed Circuit Watch: PTAB Decisions Questioned in Light of SAS and Aqua Products
On June 19, 2018, the Court of Appeals for the Federal Circuit issued Sirona Dental Systs. GmbH v. Institut Straumann AG.[1] The case is important because two other recent court decisions – SAS and Aqua Products – affected certain details of this case that ultimately affected how the Fed Circuit ruled. In SAS, the U.S. …
Fed Circuit Watch: TTAB Fails Genericness Test
In a rare review of a Trademark Trial and Appeal Board (TTAB) case, the Court of Appeals for the Federal Circuit vacated and remanded the decision in Royal Crown Co., Inc. v. The Coca-Cola Co.,[1] involving the doctrine of trademark genericism. The Fed Circuit panel found fault with the TTAB’s analysis of the test for …
Fed Circuit Watch: All Claims and Grounds Must Be Addressed Post-SAS
On July 2, 2018, the Court of Appeals for the Federal Circuit issued a mandate in Adidas AG v. Nike, Inc., in yet another post-SAS determination. Before a panel composed of Judges Moore, Wallach, and Taranto, issued the order remanding the case back to the PTAB to address all claims and grounds originally raised in …
CannabIP: U.S. Patent No. 9,938,663 B2
U.S. Patent No. 9,938,663 B2 issued on April 10, 2018, for “Methods for Producing Raw Materials from Plant Biomass,” to applicant 9Fiber, Inc., of Silver Spring, Maryland, and inventor Adam Powars, of Denver, Colorado. The claims are directed to a new method for recycling raw plant materials. The specific method is decortication, degumming, decontamination, whitening, …
Fed Circuit Watch: Every Limitation Required for Infringement-by-Manufacture
In FastShip, LLC v. United States,[1] the patented Littoral Combat Ship (LCS) was allegedly infringed. This case is interesting, in part because the defendant was the U.S. Government, and it is a patent infringement suit which arrived to the Court of Appeals for the Federal Circuit by way of the Court of Federal Claims (CFC). …
Fed Circuit Watch: No Challenge to Partial Institution Raises No SAS Issue
On June 7, 2018, the Court of Appeals for Federal Circuit handed down PGS Geophysical AS v. Iancu,[1] which has a tangential relationship to the WesternGeco LLC, of the recent WesternGeco LLC v. ION Geophysical Corp. [2] recently decided by the U.S. Supreme Court. This case is one of several transition cases pending with the …
Second Circuit Will Not Yet Hear Embedded Tweet Appeal
In a somewhat unsurprising move, the Court of Appeals for the Second Circuit denied an interlocutory appeal (28 U.S.C. §1292) requested by publisher defendants in Heavy, Inc. v. Goldman.[1] The order can be found here 18-910_goldman-CA2_intapp_dend. As discussed in an earlier posting on this blog, the district court case, Goldman v. Breitbart News Network, LLC, held …
SCOTUS Watch: Supreme Court to Hear Case of What “Registration” Means
On June 28, 2018, the U.S. Supreme Court granted the petition for writ of certiorari in Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC. The justices took up the case to resolve a split in the circuits surrounding the definition of “registration” within the meaning of 17 U.S.C. §411(a), the copyright infringement statute. Currently, the …
Fed Circuit Watch: PTAB Invalidity Collaterally Estops Assertion of Those Claims in Later Appellate Case
The Court of Appeals for the Federal Circuit waded into a convoluted case involving patents directed to X-Y chromosome sorting techniques for selective breeding in livestock. This case is XY, LLC v. Trans Ova Genetics, L.C.,[1] and the opinion was issued on May 23, 2018. Topically, the case deals with breach of contract, antitrust, and …