Dear House Judiciary Committee: In Questioning William Barr, Employ the Ethics Complaint That 27 Distinguished DC Lawyers Filed Wednesday

FREDERICK BARON, DENNIS AFTERGUT, AUSTIN SARAT

Frederick Baron, former associate deputy attorney general and director of the Executive Office for National Security in the Department of Justice, Dennis Aftergut, a former federal prosecutor, and Austin Sarat, Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College, call upon the House Judiciary Committee to carefully read the ethics complaint by 27 distinguished DC lawyers against William Barr before questioning him today, July 28, 2020.

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FanDuel, Inc. v. Interactive Games, LLC

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1393

Opinion Date: July 29, 2020

Judge: Todd Michael Hughes

Areas of Law: Intellectual Property, Patents

Interactive’s patent describes a gaming system wherein a gaming service provider—such as a casino—wirelessly communicates with users’ mobile devices, allowing them to gamble remotely. The system stores rules to determine the “game configuration” based on the location of a user’s “mobile gaming device” and associates different gaming configurations with different locations, using a “lookup table.”. FanDuel petitioned for inter partes review (IPR) of the patent on several grounds of obviousness. The Patent Trial and Appeal Board found unpatentable all challenged claims except claim 6, finding that FanDuel failed to prove that claim 6 was obvious in view of asserted prior art. The Federal Circuit affirmed, rejecting a claim that the Board violated the Administrative Procedure Act by basing its finding on obviousness issues that Interactive did not raise in its responses. The Board’s purported new theory was merely an assessment of the arguments and evidence FanDuel put forth in its petition. The APA does not require the Board to alert a petitioner that it may find the asserted theory of obviousness lacking in evidence before it actually does so, nor is a petitioner entitled to a pre-decision opportunity to disagree with the Board’s assessment. The obviousness findings are supported by substantial evidence.

Gensetix, Inc. v. Baylor College of Medicine

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1424

Opinion Date: July 24, 2020

Judge: O'Malley

Areas of Law: Civil Procedure, Constitutional Law, Education Law, Government & Administrative Law, Intellectual Property, Patents

Decker developed the patented inventions while employed at the University of Texas and assigned the patents to UT. Gensetix obtained an exclusive license in the patents. The license agreement provides that, Gensetix must enforce the patents. The parties agreed to cooperate in any infringement suit and that nothing in the agreement would waive UT's sovereign immunity. Gensetix sued Baylor, alleging infringement and requested that UT join as a co-plaintiff. UT declined. Gensetix named UT as an involuntary plaintiff under FRCP 19(a). The district court dismissed, finding that UT is a sovereign state entity, so that the Eleventh Amendment barred joinder of UT, and that the suit could not proceed without UT. The Federal Circuit affirmed in part. UT did not voluntarily invoke federal jurisdiction; the Eleventh Amendment prevents “the indignity of subjecting a State to the coercive process of judicial tribunals” against its will. It is irrelevant that the license agreement requires the initiation of an infringement suit by Gensetix or cooperation by UT. The court erred in dismissing the suit without adequate analysis of Rule 19(b)'s factors: the extent to which a judgment might prejudice the missing required party or the existing parties; the extent to which any prejudice could be lessened; whether a judgment rendered in the required party’s absence would be adequate; and whether the plaintiff would have an adequate remedy if the action were dismissed.