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Tribal Immunity Cannot Be Asserted to Escape IPR Proceedings

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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/

Blockchain

Mark Cuban Backs Ethereum-Based Data Marketplace dClimate

Mark Cuban Ethereum

Rate this post Dallas Mavericks owner, Mark Cuban is betting big on Ethereum’s future. The billionaire investor is joining Ethereum-based data project dClimate, a decentralized network for climate data, forecasts, and models based on the Ethereum blockchain and powered by the oracle network Chainlink Mark Cuban to Join Ethereum and Chainlink Data Project dClimate  Cuban has been advocating for crypto investments and adoption in the last few years. The tech entrepreneur has shown a great deal of interest in Ethereum in particular. During an interview, Cuban discussed the blockchain’s potential to disrupt banking, healthcare, and software companies. He also claimed that Etherem has a “greater long term” value as compared to Bitcoin. Following that, he invested in an Ethereum scalability startup Polygon. With his latest investment, Cuban is set to unleash Ethereum’s disruptive capabilities in a sector that ripe for a change: data. dClimate connects businesses and entities in need of climate data with publishers who can fulfill their needs. The company uses blockchain to eliminate middlemen and ensures transparency with an in-built mechanism to score the data quality. It also employs Chainlink — an Ethereum-based project that delivers information in and out of a blockchain network — to fetch the climate data. Chainlink is designed to connect blockchains with data in the real world in a secure manner. Over the last year, Chainlink has benefitted immensely from hundreds of partnerships with crypto-related projects, resulting in a 1000% surge in the value of LINK, its native token. Cuban’s Expertise is Invaluable to dClimate According to dClimate co-founder Sid Jha, Cuban’s understanding of blockchain and smart contracts could evolve and add transparency to the climate data industry. Furthermore, he stated, “His insights and expertise will be an invaluable asset to the dClimate team as we build a platform that can be leveraged by the many stakeholders who need reliable and secure weather data to build climate resilience.” Apart from Ethereum, Cuban has also expressed an interest in Dogecoin, a meme-currency that has a market cap of over $40.7 billion. His professional basketball team, Dallas Mavericks is also supportive of the crypto revolution and started accepting Bitcoin for payments two years ago.

The post Mark Cuban Backs Ethereum-Based Data Marketplace dClimate appeared first on Cryptoknowmics-Crypto News and Media Platform.

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Dallas Mavericks owner, Mark Cuban is betting big on Ethereum’s future. The billionaire investor is joining Ethereum-based data project dClimate, a decentralized network for climate data, forecasts, and models based on the Ethereum blockchain and powered by the oracle network Chainlink

Mark Cuban to Join Ethereum and Chainlink Data Project dClimate 

Cuban has been advocating for crypto investments and adoption in the last few years. The tech entrepreneur has shown a great deal of interest in Ethereum in particular. During an interview, Cuban discussed the blockchain’s potential to disrupt banking, healthcare, and software companies. He also claimed that Etherem has a “greater long term” value as compared to Bitcoin. Following that, he invested in an Ethereum scalability startup Polygon.

With his latest investment, Cuban is set to unleash Ethereum’s disruptive capabilities in a sector that ripe for a change: data.

dClimate connects businesses and entities in need of climate data with publishers who can fulfill their needs. The company uses blockchain to eliminate middlemen and ensures transparency with an in-built mechanism to score the data quality. It also employs Chainlink — an Ethereum-based project that delivers information in and out of a blockchain network — to fetch the climate data. Chainlink is designed to connect blockchains with data in the real world in a secure manner. Over the last year, Chainlink has benefitted immensely from hundreds of partnerships with crypto-related projects, resulting in a 1000% surge in the value of LINK, its native token.

Cuban’s Expertise is Invaluable to dClimate

According to dClimate co-founder Sid Jha, Cuban’s understanding of blockchain and smart contracts could evolve and add transparency to the climate data industry. Furthermore, he stated, “His insights and expertise will be an invaluable asset to the dClimate team as we build a platform that can be leveraged by the many stakeholders who need reliable and secure weather data to build climate resilience.”

Apart from Ethereum, Cuban has also expressed an interest in Dogecoin, a meme-currency that has a market cap of over $40.7 billion. His professional basketball team, Dallas Mavericks is also supportive of the crypto revolution and started accepting Bitcoin for payments two years ago.

READ  Diginex Is the First Crypto Exchange to Go Public on Nasdaq

#DClimate #Ethereum #Ethereum and Chainlink #Mark Cuban

Source: https://www.cryptoknowmics.com/news/mark-cuban-backs-ethereum-based-data-marketplace-dclimate/

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Bitcoin Struggles to Breach $40k After Fed Schedules Interest Rate Hike

Bitcoin Fed

Rate this post Bitcoin struggled to soar above $40,000 as investors unpacked the latest Fed announcement. On Wednesday, the Federal Reserve announced that it planned to increase interest rates twice in 2023, much sooner than the markets expected. The announcement incited fears that the banking system could also curtail its bond-buying program. Bitcoin Tumbles Amid Fed Announcement on Interest Rate Hikes in 2023 Bitcoin (BTC) prices are tumbling again after briefly showing signs of recovery. The currency was changing hands at an intraday low of $38,300, following its decline from the $40,000 mark. Meanwhile, in the stock markets, DOW and S&P 500 also recorded a drop of 0.77% and 0.54% respectively. The latest decision on interest rates comes in light of rising inflation in the United States. The country — currently experiencing a 13 year high in consumer prices — is projected to see its inflation rates spike from 2.4% to 3.4%. While Fed chair Jerome Powell has termed the projected rates to be “transitory”, investors are worried about the implications of ongoing inflation for a post-pandemic economy. In the meantime, investors tied to risky assets such as stocks and cryptocurrencies are also anticipating the Fed to roll back its $120 billion monthly bond purchase program, which could be winded down before the planned interest rate hikes. Current Bitcoin Price Activity is Normal Range-Bound Trading BTC prices briefly breached $40,000 but fell short of $45,000, as the currency traded at nearly $41, 350 on 15 June. But the digital asset couldn’t maintain this level longer and plummeted further. Even as BTC fell from $40,000 to $38,300, investors are confident about the primary cryptocurrency’s resilience. Some believe that Bitcoin’s price activity matches its range-bound trading. At this point, investors are hoping for BTC to hold at $37,000, which could represent its support level. Interestingly, major exchanges have recorded a continuous inflow of BTC over the last few days. Miner outflows have also been increasing according to the findings of CryptoQuant, which suggest that BTC inflows produce bearish results for the market.  Additionally, the currency’s 50 and 200-day moving averages are also on their way to convergence, leading to the formation of a bearish death cross. While they are not the strongest indicators of the current spot price action, they help understand the existing resistance for bulls. 

The post Bitcoin Struggles to Breach $40k After Fed Schedules Interest Rate Hike appeared first on Cryptoknowmics-Crypto News and Media Platform.

Republished by Plato

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Rate this post

Bitcoin struggled to soar above $40,000 as investors unpacked the latest Fed announcement. On Wednesday, the Federal Reserve announced that it planned to increase interest rates twice in 2023, much sooner than the markets expected. The announcement incited fears that the banking system could also curtail its bond-buying program.

Bitcoin Tumbles Amid Fed Announcement on Interest Rate Hikes in 2023

Bitcoin (BTC) prices are tumbling again after briefly showing signs of recovery. The currency was changing hands at an intraday low of $38,300, following its decline from the $40,000 mark. Meanwhile, in the stock markets, DOW and S&P 500 also recorded a drop of 0.77% and 0.54% respectively.

The latest decision on interest rates comes in light of rising inflation in the United States. The country — currently experiencing a 13 year high in consumer prices — is projected to see its inflation rates spike from 2.4% to 3.4%. While Fed chair Jerome Powell has termed the projected rates to be “transitory”, investors are worried about the implications of ongoing inflation for a post-pandemic economy.

In the meantime, investors tied to risky assets such as stocks and cryptocurrencies are also anticipating the Fed to roll back its $120 billion monthly bond purchase program, which could be winded down before the planned interest rate hikes.

Current Bitcoin Price Activity is Normal Range-Bound Trading

BTC prices briefly breached $40,000 but fell short of $45,000, as the currency traded at nearly $41, 350 on 15 June. But the digital asset couldn’t maintain this level longer and plummeted further.

Even as BTC fell from $40,000 to $38,300, investors are confident about the primary cryptocurrency’s resilience. Some believe that Bitcoin’s price activity matches its range-bound trading. At this point, investors are hoping for BTC to hold at $37,000, which could represent its support level.

Interestingly, major exchanges have recorded a continuous inflow of BTC over the last few days. Miner outflows have also been increasing according to the findings of CryptoQuant, which suggest that BTC inflows produce bearish results for the market. 

Additionally, the currency’s 50 and 200-day moving averages are also on their way to convergence, leading to the formation of a bearish death cross. While they are not the strongest indicators of the current spot price action, they help understand the existing resistance for bulls. 

READ  BCD Technical Analysis: Price Likely to Fall Below the First Support Level of $4.32

#Bitcoin price #Federal Reserve Bank #Federal Reserve Interest Rate

Source: https://www.cryptoknowmics.com/news/bitcoin-struggles-to-breach-40000-after-fed-schedules-early-interest-rate-hike/

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Shanghai Man: Economist says El Salvador ‘on road to death’, salaries paid in e-CNY …

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Our Man in Shanghai has refused to let recent regulations slow down the news coming from China. Enterprise blockchain, central bank digital currencies and start up projects continue to make a positive impact in a region hoping to grow economic value through technology.

Death march for El Salvador

The debate around El Salvador continued this week as media and officials tried to digest the adoption of Bitcoin as a national currency. JPMorgan stated that there was little economic benefit, and John Hopkins University professor Steve Hanke warned that the move could “completely collapse the economy” of the small nation. The former Bank of China deputy governor Wang Yongli took a very hardline approach, by stating that volatility and a lack of regulation or controls would put the economy on a “road to death.” This quote, appearing in state run media The Paper June 9, was an unusually direct and colorful statement on the issue.

Crypto innovation can be productive

Zhou Xiaoquan, a former governor of the People’s Bank of China, had a few positive things to say about cryptocurrency as a technology on June 11. He spoke at an economic summit in Shanghai and noted the cryptocurrency innovation in China can be productive when it serves the real economy. He also took some shots at other countries, stating that people would be mistaken if they thought other countries were taking the same approach towards building financial services. Zhou, who is one of the most often-quoted economists in the country, felt there was little emphasis on the relationship between financial services and economic value elsewhere in the world. Based on the wild displays at the Miami Bitcoin conference a few weeks ago, his position might be more sound than others would care to admit.

Paid in e-CNY

China’s e-CNY tests continued with the first reported mass payment of salaries in Xiong’an, a district near the capital Beijing. According to Cointelegraph, the pilot received support from a number of national banks and saw subcontractors paying workers their salaries from a digital wallet.

Industrial blockchain worth $22.6B

On June 3, a government organization issued a report entitled the China Industrial Blockchain Development Status and Trend Report. According to the report, in 2020, 222 industrial blockchain policies were issued, 12,059 new blockchain-related patent applications were approved, and 776 new blockchain enterprises were established. The report also claimed that the current market size of the industrial blockchain sector was around $22.6 billion U.S. dollars. Industrial blockchain is an area that China is eager to grab control in, leading to this explosive growth in recent years.

Only 5X the fun

Leading exchange Huobi surprised futures traders by limiting them to only 5x leverage on perpetual swaps and blocking new users from accessing the feature altogether. Futures trading, particularly highly-leveraged futures trading, had always been popular features on exchanges like OKEx and Huobi. It will be interesting to see whether these new decisions to limit risk will be damaging to these large exchanges that still somewhat adhere to regulator rules. It’s also possible that it’s a short-term solution in order to avoid scrutiny during periods of tighter control.

Futures of Singapore

While Huobi was tightening controls on futures traders, Singapore-based platform SynFutures was completing a Series A for $14 million. The round was led by Polychain Capital and included names like Framework Capital, Pantera Capital, Bybit, Kronos Research, WOO Ventures, Wintermute, and IOSG Ventures. SynFutures is creating a trustless derivatives market where users can take positions on assets or anything that has an accurate feed, including Bitcoin, the price of gold, or even the Bitcoin hashrate. What many people don’t know is that the SynFutures team is composed of members from Matrixport, a financial service app that was an offshoot of massive Chinese mining conglomerate Bitmain. Now you know the whole story!

This weekly roundup of news from Mainland China, Taiwan, and Hong Kong attempts to curate the industry’s most important news, including influential projects, changes in the regulatory landscape, and enterprise blockchain integrations.

Shanghai Man: Economist says El Salvador ’on road to death’, salaries paid in e-CNY …

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Source: https://blockchainconsultants.io/shanghai-man-economist-says-el-salvador-on-road-to-death-salaries-paid-in-e-cny/?utm_source=rss&utm_medium=rss&utm_campaign=shanghai-man-economist-says-el-salvador-on-road-to-death-salaries-paid-in-e-cny

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