Blockchain

Tribal Immunity Cannot Be Asserted to Escape IPR Proceedings

Published

3 years ago

July 25, 2018

Indian tribes ability to shield patents from review at the United States Patent and Trademark Office’s (“USPTO”) Patent Trial and Appeal Board (“PTAB”) took another blow at the Federal Circuit. The Federal Circuit in a precedential decision, affirming the decision of the PTAB, held that tribal sovereign immunity cannot be asserted in inter partes review (“IPR”) proceedings before the PTAB.[1]

The Federal Circuit based the decision on two principles extrapolated from Supreme Court decisions. First, the general proposition that “immunity does not apply where the federal government acting through an agency engages in an investigative action or pursues an adjudicatory agency action.”[2] Second, the Supreme Court’s recognized distinction between adjudicative proceedings brought by a private party against a state, on the one hand, and federal agency-initiated enforcement proceedings, on the other. According to the Federal Circuit, immunity may generally be invoked in the private party actions, but not in the federal agency-initiated enforcement proceedings.

The opinion allocates a majority of its analysis distinguishing IPR proceedings from a Federal Maritime Commission proceeding in which the Supreme Court held that state sovereign immunity could be invoked. In FMC Maritime Comm’n v. S.C. State Ports Auth., 535 U.S. 743 (2002) (“FMC”), the Supreme Court decided that because the FMC proceedings had “overwhelming” similarities with civil litigation in federal court which made them “virtually indistinguishable,” that they were the “type of proceedings from which the Framers would have thought the States possessed immunity when they agreed to enter the Union.”[3] The Federal Circuit, deeming the FMC decision as instructive to questions of tribal immunity, clung to the Supreme Court’s acknowledgement that there are certain federal agency-initiated actions to which the states could not invoke immunity.[4]

The Federal Circuit highlighted four differences between IPR proceedings and adjudicative proceedings brought by a private party before a federal agency like the one in FMC. First, The Federal Circuit highlighted that the Director of the USPTO has “broad discretion in whether to institute a review.”[5] According to the Court, although the Director is “significantly constrained” in how he conducts IPR proceedings, the “complete discretion” whether or not to institute a proceeding “embraces the entire proceeding.”[6] Thus it is the Director, a “politically accountable, federal official,” and not a private party who “ultimately decides whether to proceed against the sovereign.”[7]

Second, the “role of the parties” in an IPR suggests immunity does not apply. In other words, the Director’s ability to continue an IPR proceeding or to participate in any appeals when a petitioner drops out “reinforces the view that IPR is an act by the agency in reconsidering its own grant of a public franchise.”[8]

Third, the procedures in an IPR, unlike FMC, do not mirror the Federal Rules of Civil Procedure (“FRCP”). Unlike the proceedings in FMC and the FRCP, in an IPR proceeding, the petitioner cannot amend the petition (except for minor typographical or clerical errors), the patent owner can amend claims, there are less discovery options, and there is a difference in preliminary proceedings.[9] These differences were enough for the Court to conclude that IPR proceedings “are both functionally and procedurally different from district court litigation.”[10]

Finally, the fact that the USPTO has authority to utilize other “more inquisitorial” proceedings to review or reexamine patents, does not mean that an IPR proceeding is one in which Congress intended tribal immunity to apply. “The mere existence of more inquisitorial proceedings in which immunity does not apply does not mean that immunity applies in a different type of proceeding before the same agency.”[11]

In short:

The Director’s important role as a gatekeeper and the [PTAB]’s authority to proceed in the absence of the parties convinces [the Federal Circuit] that the USPTO is acting as the United States in its role as a superior sovereign to reconsider a prior administrative grant and protect the public interest in keeping patent monopolies within their legitimate scope.[12]

It is unclear whether this saga is over, however, unless there is an appeal, it appears that the alleged scheme of transferring ownership of patents to Indian tribes won’t shield the patents from IPR proceedings.

[1] Saint Regis Mohawk Tribe, Allergan, Inc., v. Mylan Pharmaceuticals Inc., Teva Pharmaceuticals USA, Inc., Akorn, Inc. (Fed. Cir. 2018). (Download Opinion)

[2] Slip Op. at 5

[3] Id. at 6 (citing FMC at 756 and 759)

[4] The Federal Circuit explicitly stated that it was not deciding the applicability of state sovereign immunity in PTAB actions.

[5] Id. at 8

[6] Id.

[7] Id. at 9

[8] Id.

[9] Id. at 10

[10] Id.

[11] Id. at 11

[12] Id. (internal quotes omitted)

Source: https://www.bioloquitur.com/tribal-immunity-cannot-asserted-escape-ipr-proceedings/

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Blockchain

India’s Crypto Ban Uncertain as Finance Minister Touts a Window for Experiments

Published

2 hours ago

March 7, 2021

Republished by Plato

India’s Finance Minister told CNBC that the country’s reserve bank is not shutting out cryptocurrencies entirely. She said that while the Reserve Bank of India will decide which unofficial cryptocurrencies will be used and regulated, there will be “a window for experiments” in the industry.

New Lease Of Life For Bitcoin In India

India’s minister of finance, Nirmala Sitharaman, spoke briefly on the country’s standpoint on digital assets in a CNBC virtual townhall. She said that several negotiations are being held with the Reserve Bank of India regarding an impending ban.

A lower parliament in India raised a bill to ban all private cryptocurrencies in January. It said that the move was to facilitate the development of the country’s CBDC, which the RBI will issue and regulate. This did not go down well with cryptocurrency enthusiasts and industry stakeholders in the country. In response, they started an online campaign tagged #IndiaWantsBitcoin to get the RBI to reconsider its stance.

Sitharaman’s remarks suggest that the campaign was quite impactful. She said:

“A lot of negotiations and discussions are happening around the cryptocurrency with the Reserve Bank of India. RBI will be taking a call on what kind of unofficial cryptocurrency will have to be planned and how it has to be regulated. However we want to make sure that there is a window available for all kinds of experiments which will have to take place in the crypto world. There will be a very calibrated position taken. A lot of mixed messages are coming from across the world. World is moving fast with technology, we cannot pretend that we don’t want it.”

Sitting On The Fence

India is renowned for its controversial stance on bitcoin after several “back and forth” regulations. The government had initially banned cryptocurrencies in 2018 after warning investors. The halt was later overturned by the Supreme court. The apex court described the ban as “unconstitutional.”

India’s lower parliament received backlash from the global crypto community for what seemed like a ridiculous exception to its proposed cryptocurrency ban. It said it will “allow for certain exceptions to promote the underlying technology of cryptocurrency and its uses.” Regulatory bodies in the country had severally pushed the motion to advance blockchain technology adoption while banning cryptocurrencies.

Its non-committal approach has raised question marks regarding the country’s future in the digital asset space.

Digital Rupee Still In The Picture

Although Sitharaman did not discuss the progress of the digital rupee, the second most populous nation may take a cue from its neighbors, China.

China has continued trials of its digital yuan and has distributed millions of dollars in the digital currency to its citizens.

India’s Reserve bank governor, Shaktikanta Das, said last month that although there is no set date for the launch, the digital rupee was “receiving full attention.”

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Source: https://cryptopotato.com/indias-crypto-ban-uncertain-as-finance-minister-touts-a-window-for-experiments/

Blockchain

Cardano Price Analysis: 07 March

Published

2 hours ago

March 7, 2021

Republished by Plato

The cryptocurrency market has been constantly forming crusts and troughs as it strives towards stability. Cardano’s market witnessed a similar trend wherein the price surged towards the end of February but has been correcting since.

At the time of writing, Cardano was trading at $1.13 with a market capitalization of $35.68 billion.

Cardano six-hour chart

Source: ADAUSD on TradingView

The above chart noted that the current market movement had formed a descending triangle and the price was sloping lower. The price has been supported at $1.06 as the trend becomes bearish.

This downwards trending price has been indicating a further drop making its way into the ADA market.

Reasoning

After witnessing increased volatility in the recent past, the ADA market is now seeing the volatility reduce. However, it has not yet shrunk to a level where a price swing was not possible. Since the descending triangle was a bearish trend, a price drop could make the market more volatile.

The signal line and the 50 moving average were also moving above the price candles and were acting as a point of resistance. Meanwhile, market momentum has turned negative due to the rising selling pressure in the market.

Despite the shift in momentum, the Relative Strength Index has remained close to the equilibrium zone. This could be a sign for the consolidation of the price at the current level but as bearishness increases, the consolidation phase may lead to the price breaking down.

Crucial levels

Entry-level: $1.07
Stop-level: $1.17
Take profit: $0.91
Risk to Reward: 1.53

Conclusion

The current ADA market has been seeing the price drop to its $1.06 support. As the price tests the support, the indicators have been highlighting an incoming fall. This fall could push the digital asset under the support and could bring the value under $1.

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Source: https://ambcrypto.com/cardano-price-analysis-07-march

Blockchain

HODLing early leads to relationship troubles? Redditors share their stories

Published

3 hours ago

March 7, 2021

Republished by Plato

Crypto investments have reportedly been a source of strife in relationships, sometimes leading to breakups and even divorce.

According to a Reddit post from February 2015, a then 28-year-old woman using a throwaway account claimed that she was incredibly upset at her husband, who had not stopped purchasing Bitcoin (BTC) since 2013 without consulting her. She estimated that he had bought more than $22,000 in the crypto asset in the two years prior to the post, when the price reached a high of more than $1,000 but also dipped under $200.

“I kept telling him to sell as the price was rising and he promised me a big year in 2014,” she said. “The price kept falling and he continued to buy more. He makes more money than I do but we are building a future together and we have a shared bank account. He kept telling me this was for our kids’ college fund, to buy a house, etc.”

In the early days of Bitcoin and crypto when digital currencies were often used as a running joke for late night talk shows and comedians, many considered investing in the technology financially immature at the very least. Some people still do, even with the BTC price at more than $50,000 again.

The Redditor referred to her husband as “brainwashed,” saying he was “robbing [her] of happiness” and ruining her job by bringing up Bitcoin at her marketing events.

“After a recent price crash, he actually bought more using our vacation fund that I have been saving away for and planning. All gone, in Bitcoin never to be seen again.”

It’s unclear whether the couple stayed together following the response from the post, or if the husband sold some or all of the Bitcoin to ameliorate his wife’s financial concerns. The user compared her spouse to a drug addict and considered “staying in a hotel for a few weeks” to think about whether divorce was an option.

However, with the benefit of hindsight, the husband’s early investment could have easily paid off in the millions of dollars. Even assuming he purchased BTC after the price surge to $1,000 in November 2013, the 22 coins would now be worth more than $1 million.

Because the story was posted on the r/relationships subreddit rather than a pro-crypto group like r/Bitcoin or r/cryptocurrency, many of the Redditors encouraged the user to separate her finances and consider divorce proceedings. Few crypto enthusiasts jumped on the thread to comment, but one predicted that the BTC would one day be “worth fortunes” and recommended the husband continue to HODL.

Another story from a Redditor following the 2017 bull run — which brought in many newbies to the crypto space — claimed that his girlfriend was considering breaking up with him following “a huge investment in cryptocurrencies.” However, digital currencies seem to have played less of a role in his story, as the user said he crashed a car while driving drunk and was pressuring his significant other to leave her job.

Though many crypto traders know the price of Bitcoin and other digital currencies will likely continue to be volatile, the adoption and investment from major companies have helped push the technology closer to the mainstream, and made it seemingly more responsible for investors to get in on the action earlier rather than later. Already Shark Tank star Kevin O’Leary has claimed to have increased his stake in Bitcoin while asset management firm Third Point CEO Dan Loeb recently said he had been doing a “deep dive into crypto.”

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Source: https://cointelegraph.com/news/hodling-early-leads-to-relationship-troubles-redditors-share-their-stories