A non-public legislation agency hired by the Akron Regulation Department has affirmed City Council needed only a easy the vast majority of votes, instead of the supermajority in-depth in metropolis law, to promote 65 acres of public land at White Pond.
The controversial vote to sale the city home to personal developer Triton Assets Ventures came throughout the final council meeting of 2022. In hrs, residents in opposition to the luxury housing challenge pounced on language in a town ordinance from 1990 that claims the city should publicize general public assets income in “a newspaper of common circulation” for three weeks ahead of the residence “shall be conveyed to the optimum bidder on approval of the Board of Handle.”
These provisions, the legislation states, can only be waived with a two-thirds vote of council, or nine associates.
On behalf of individual clientele, Akron legal professional Warner Mendenhall and Cleveland attorney Subodh Chandra filed taxpayer need letters contesting the legitimacy of the assets sale.
The city by no means advertised the sale in a newspaper. Council approved the sale 7-6. And the Akron Legislation Section hardly ever manufactured general public its motive for telling council why only a very simple majority vote was desired.
But Regulation Director Eve Belfance questioned private lawyers at Roetzel & Andress for a next viewpoint. The Beacon Journal acquired a copy of that belief, which was gained by the city final 7 days.
Stephen Funk of Roetzel & Andress writes that voter improvements to the city charter in 2020 lifted constraints on the sale of general public land and, instead of getting out adverts in a regional newspaper, the city could just promote the public land sale on its web page, which the town reported it did for three months.
But the primary cause why Funk claimed council broke no legislation in the land sale vote is due to the fact an ordinance handed by council right now can be outdated by any foreseeable future ordinance. Town constitution provisions are distinct. But ordinances have to have only a straightforward the greater part vote and do not bind long term council action.
“In typical, it is nicely set up that a legislative human body lacks the authority to limit or restrict the physical exercise of a future legislature’s powers underneath the Ohio Constitution,” Funk wrote.
Activists have explained privately and at Town Council meetings that another person presented the metropolis $1 million for White Pond, which would have been the greatest bid. But metropolis spokeswoman Stephanie Marsh claimed the Business office of Built-in Advancement has no file of anyone distributing that bid.
Arrive at reporter Doug Livingston at [email protected] or 330-996-3792.
Laws to impose a tax on the creation of mezzanine financial debt and favored equity was reintroduced on Jan. 4, 2023, in the last two periods of the New York state legislature, by the very same state senators who proposed it previously. The only change is the invoice number, which is now S-318 as an alternative of S-7231. Amid actions, the Mezzanine Financial debt Monthly bill:
would impose the home loan recording tax on mezzanine financial debt and favored fairness investments, as well as involve that the mezzanine loan company or most well-liked fairness holder file a Uniform Commercial Code financing assertion (UCC-1) to best its safety curiosity in its collateral (i.e., the membership pursuits or shares of the borrower)
helps prevent a secured party from imposing a protection curiosity except if the funding statement is submitted with the condition and the county in which the residence is positioned and the home finance loan recording tax has been paid
targets serious estate transactions, whilst there is a pretty real probability that it could be interpreted to consist of any financing transaction that even indirectly entails real estate, which could include things like company transactions in which the target enterprise or its subsidiaries include genuine estate used in its operations
Described Conditions
The invoice amends Section 291-k of New York’s Real Home Regulation to outline “mezzanine financial debt” and “desired fairness investments” as:
“debt carried by a borrower that may possibly be subordinate to the major lien and is senior to the common shares of an entity or the borrower’s fairness and documented as assets for the reasons of funding such key lien. This shall involve non-conventional financing methods these types of as a direct or indirect expense by a funding resource in an entity that owns the [equity] passions of the fundamental house loan in which the financing supply has special legal rights or chosen rights this kind of as: (i) the correct to receive a distinctive or desired rate of return on its cash investment and (ii) the right to an accelerated reimbursement of the trader[‘]s money contribution.”
The reference to “non-traditional financing strategies” need to be considered as troubling simply because it is open up-ended and could enable practically any romantic relationship to become matter to the property finance loan recording tax.
The Mezzanine Debt Invoice also modifies Segment 250 of the New York State Tax Regulation and Area 9-601 of New York’s UCC to specify that “each time a house loan instrument is recorded in the office of the recording officer of any county, any mezzanine personal debt or favored equity expense related to the real home upon which the house loan instrument is filed shall also be recorded with this kind of mortgage loan instrument.” The Mezzanine Debt Bill also delivers that “mezzanine financial debt and preferred equity investments” are taxable, and that the tax will be measured by the quantity of “principal debtor obligations” that could be secured by a protection settlement “in relation to serious property on which a mortgage instrument is filed.” A consequence of the recording need is that counties and towns could also impose a tax on the recording of the financing assertion, which would make the efficient tax fee equal to the mortgage loan recording tax amount, which is 2.85 percent of the “debt” secured for industrial authentic assets located in New York Metropolis and having a value of more than $500,000.
The Mezzanine Credit card debt Bill also amends Segment 9-601 of the UCC to present a new prerequisite that recording of a funding assertion in the pertinent county records is required to ideal “a safety fascination in mezzanine debt and/or a most well-liked fairness investments.” This is especially troubling because Section 291-k of the Authentic House Legislation would supply that:
“No treatment or else accessible to a secured party less than report 9 of the uniform commercial code shall be readily available to enforce a security settlement pertaining to mezzanine credit card debt funding and/or desired equity investments in relation to true house on which a house loan instrument is submitted that is evidenced by a funding statement, except if that funding statement is filed and the tax imposed pursuant to the authority of subdivision 4 of area two hundred fifty-a few of the tax law, has been paid.”
Unintended Penalties
Whilst the Mezzanine Personal debt Bill targets serious estate transactions, there is a pretty actual risk that it could be interpreted to include things like any financing transaction that even indirectly includes genuine estate, which could consist of company transactions in which the focus on business or its subsidiaries consist of actual estate utilized in its operations. There is also the trouble of multistate transactions that either involve events that individual serious estate in New York or in other places, which also raises issues as to which state’s regulations would govern real estate in New York in a transaction obtaining a nexus with a different condition. In reviewing the Mezzanine Personal debt Monthly bill, it is apparent that, if enacted, it will make New York additional high-priced and is likely to make mezzanine personal debt and preferred equity significantly less accessible than in the other 49 states.
The Sponsor’s Justification demonstrates that the bill’s writer does not completely understand the roles mezzanine personal debt and favored fairness participate in in authentic estate finance and treats mezzanine credit card debt and preferred fairness as one more variety of mortgage financing, which is the opposite of the purpose that they play. It is the availability of mezzanine financial debt and chosen equity to make assets extra financeable by expanding the fairness part of the personal debt stack and has become a prerequisite for considerably home loan funding, especially construction funding, which generally carries a great deal of danger. Dealing with mezzanine financial debt and chosen fairness as a home finance loan could adversely affect its use as supplemental equity enabling the borrower to be capable to get hold of mortgager funding.
The sponsor also argues that there is a thing unfair mainly because homebuyers are not able to attain mezzanine funding, despite the fact that the legislature and the state’s banking regulators and Dobbs-Frank Act would in no way let homebuyers to give the fairness in their residences to a third get together, nor would the legislature permit a third occasion to make decisions concerning the assets, which would be vital for the financial institution to protect its collateral. In addition, thinking about the complexity concerned in foreclosing a mortgage loan in New York, the legislature would in no way allow a UCC auction to terminate the homeowner’s legal rights to their property devoid of a long time of litigation, which would defeat the incredibly purpose of mezzanine debt and preferred equity financing.
Summary and Concerns
If enacted, it is predicted that this laws would end result in fewer offered funding for design and other dangerous funding, which would make another rationale for builders, traders and lenders to go their business to Florida, Texas or other low-tax, reduced-regulatory states. Though it might be aimed in portion at elevating income, the bill also results in a disincentive for financing in New York and could consequence in New York Town and the condition actually getting less earnings, mainly because the mezzanine and most popular fairness funding resources would abide by the mortgage loan financing to one more, additional hospitable point out.
For much more facts, speak to the writer.
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Picture this: You step outside your residence to go to your car or truck, but it’s nowhere to be uncovered. The space on the street the place you parked it is vacant. It’s been towed.
Obviously, you’re upset. And now you owe hundreds of dollars to get it again. That’s the scenario several Coloradans come across themselves in even following lawfully parking in the vicinity of their households.
Towing on household house has come to be more widespread in Colorado. The state’s Public Utilities Fee, which regulates towers, estimates it will get extra than 400 these problems every year, with quantities escalating each year.
But a new regulation that went into result previous August has changed the match when it will come to towing on personal property. It is also caused some confusion amid motorists, property entrepreneurs and even towing businesses about when it is nonetheless authorized to tow.
CPR seemed into your inquiries about towing submitted by means of our Colorado Wonders job. Here’s what we know so much:
What is this new regulation, precisely?
The legislation is known as the Towing Bill of Rights. It is the most important overhaul in a very long time of how our state governs the towing market. Especially, we’re speaking about procedures for when corporations can and cannot tow your vehicle from non-public residential spots.
It passed all through past year’s legislative session and went into effect in August 2022.
Does the new law contain the parking heaps at locations like the grocery store or dining places?
No, the law only covers towing on non-public residential homes. Assume neighborhoods, apartment complexes and cell property parks. It does not go over towing in parking lots for business attributes this kind of as dining establishments and grocery shops, so your car could still be towed from those areas.
What are some of the new regulations for household spots?
The most significant modifications circle around when a company can just take your auto with no your consent.
The law also gives the state a lot more ability over permit approvals for Colorado operators and issuing fines versus terrible actors in the field.
Towing firms cannot consider your vehicle merely because you have an expired license plate, unless they’re carrying out a law enforcement or court docket purchase.
Towing corporations need to give a 24-hour prepared recognize prior to getting rid of vehicles situated on residential assets, with some exceptions. Those people include: Court or police orders Car owner consent When a automobile has been given two prior notices Creditor repossessions When a automobile is blocking a driveway If a motor vehicle is parked illegally in a handicap place When a automobile is parked in a fireplace zone or Parking without a allow (if essential by home).
Towing firms should launch a car or truck at no demand upon ask for from an proprietor if continue to on non-public house.
Towing firms should release towed cars to house owners upon payment of 15{c024931d10daf6b71b41321fa9ba9cd89123fb34a4039ac9f079a256e3c1e6e8} of overall costs, not exceeding $60.
Towing companies need to release the contents on towed motor vehicles upon ask for from entrepreneurs.
Have lesstowstranspired for the reason that of these new guidelines?
Towing companies interviewed by CPR say they have scaled back the variety of their hauls in the five months because the law took influence.
John Connolly, proprietor of Arvada-centered Connolly Towing, has simply dropped his 380 personal household property customers because of to the new law’s specifications. The modifications have induced also a lot confusion amid prospects, he stated.
“There are so lots of distinctive parts of towing from legislation enforcement towing to household and junk haul towing,” he mentioned. “The new legislation never utilize to most spots, but many people today imagine they do.”
Soon following the legislation took outcome, Connolly determined to target his enterprise completely on non-household tows, he explained.
Wyatt’s Towing, the most significant household tower in the Denver Metro area, has seen enterprise fall about 20 percent given that previous August. That’s primarily for the reason that there are far more hoops for operators to bounce through prior to building a authorized tow, said Trevor Forbes, Wyatt’s president and CEO.
“It’s a bunch of small adjustments that are adding up,” he mentioned. “A reduction in our earnings also needs significantly less staff, so we just have considerably less individuals far too.”
There is minimal details on the point out range of tows. That photo could increase, nevertheless. Likely ahead, the PUC is now needed to deliver lawmakers with an once-a-year report on towing grievances each December.
If your automobile does get wrongly towed, can you get your cash again?
It depends on your problem.
The regulation offers much more enamel to state regulators who oversee the towing industry, which include an added $100,000 for the PUC. That income will go toward choosing an additional full-time investigator to seem into purchaser complaints.
NPR’s Scott Simon talks to Andy Yan at Simon Fraser College in Vancouver, Canada, about a new two-year ban prohibiting some foreigners from acquiring property in Canada.
SCOTT SIMON, HOST:
Purchasing a household in Canada just acquired harder for some foreigners. New regulation came into outcome that will prohibit some international traders from paying for household attributes in that region for the next two years. Andy Yan is director of the City Plan at Simon Fraser University in Vancouver. Thanks really a lot for becoming with us.
ANDY YAN: You happen to be welcome, Scott.
SIMON: Why has the federal government introduced this policy?
YAN: Well, I think it commences with the fundamental perception that households should not be commodities, that – Minister Hussen, the minister of housing, variety and inclusion, I imagine, started, I feel, the introduction of this legislation, I imagine, with this elementary belief and through which I believe that it can be a number of, I consider, variations inside the federal, provincial and regional concentrations of government to guarantee that housing is economical and available for all Canadians.
SIMON: When you say homes shouldn’t be commodities, you are suggesting something that folks have instructed has happened in parts of London and, for that subject, Midtown Manhattan.
YAN: In fact. And I assume that it really is the plan that houses should be occupied, that homes should not be held vacant. What is attention-grabbing is to in fact see what is actually transpired in the state, provincial and local concentrations, I believe as a result of which there have been – you will find been legislation and taxes, but when it comes to vacant properties and overseas purchasing, I imagine also has launched a sizeable quantity again into the rental pool.
SIMON: Are foreigners purchasing assets the cause that housing rates are higher?
YAN: Effectively, I feel that it can be one of them. But then, of system, it really is also the truth that Canada is a very, incredibly major state. And I imagine that based on where you are wanting, that the purpose of international money has been, I consider, just one of the flows of income into housing markets for specific cities throughout the nation.
SIMON: Did New Zealand consider something like this a number of a long time ago?
YAN: I consider New Zealand did try anything like this. But then I think what is also transpired is seriously some sizable alterations in conditions of finance, in conditions of ultra-low curiosity costs, access to credit history, and seriously enacted a degree of other kinds of demand that also inflated their housing markets.
SIMON: I have to ask, Mr. Yan, is this – does this plan have much more to do with politics than economics?
YAN: I believe that it’s really one particular that I imagine appears formidable and dominant, but nonetheless when you seem at the facts, it is really in fact dulled. There are, I assume, any selection of sizeable exemptions for those people that are non-Canadians, I assume, by way of which could definitely form of dull down the outcomes of definitely what the intent of the legislation should to be.
SIMON: For illustration, if a foreigner is a lasting resident, they can still invest in a dwelling, correct?
YAN: Oh, really a lot so, as very well as a college student or a refugee or anyone who is performing for a foreign company so that there are a selection of avenues via which non-Canadian citizens can however obtain homes.
SIMON: Is – does this make Canada appear to be a tiny less open to the world? They – Canadians are happy of getting open up and obtainable and a welcoming region.
YAN: Effectively, I feel that it can be really attempting to stay in line with what is transpired with other nations around the world in phrases of holding their housing markets open up and accessible, that I imagine that a little something like this, international purchasers – in addition to, I assume, other parts of legislation when it arrives to provide, demand and finance – are actually intended to maintain the nation open up, that the Canadian dream can however continue to be alive, as immigrants, I believe, also are battling in Canada’s housing markets.
SIMON: Andy Yan, director of the Town Plan at Simon Fraser University, thanks extremely a lot for being with us.
NPR transcripts are designed on a rush deadline by an NPR contractor. This textual content may well not be in its last kind and might be updated or revised in the foreseeable future. Accuracy and availability could range. The authoritative history of NPR’s programming is the audio document.
Ukrainians and Russians have celebrated Orthodox Christmas as combating persisted even with Russia’s unilateral call for a 36-hour cease-hearth that Ukraine reported was only a ploy by Russian President Vladimir Putin to reposition and boost his troops.
While the faithful celebrated the getaway, towns in eastern Ukraine saw no major lessen in the battling on January 6-7.
Live Briefing: Russia’s Invasion Of Ukraine
RFE/RL’s Stay Briefing provides you all of the most up-to-date developments on Russia’s ongoing invasion, Kyiv’s counteroffensive, Western army assist, global response, and the plight of civilians. For all of RFE/RL’s protection of the war, click here.
Shelling in the city of Bakhmut by the Russian armed forces killed two people — a 66-12 months-old male and a 61-12 months-outdated girl — Ukraine’s Prosecutor-General’s Workplace claimed.
An additional 13 persons were hurt by mines that exploded and left them with shrapnel wounds. Apartment structures and other services had been also destroyed and ruined by the shelling, the Prosecutor-General’s Workplace explained.
The fatalities occurred on January 6 but details about the victims were being very first reported on January 7.
Military spokesman Serhiy Cherevatiy told Ukrainian tv that Bakhmut and Soledar, yet another town in the location, remained underneath the management Ukrainian forces, while shelling and clashes ongoing on January 7.
“Our armed forces and command are undertaking almost everything to inflict greatest problems on the enemy in conditions of personnel and products…and to maintain their forces as a great deal as achievable,” Cherevatiy said.
He included that the strategies of the Russian army experienced not transformed: They use staff who constantly “roll” into the positions of Ukrainian defenders. Ukrainian soldiers “are on the defensive, but the tactical situation often forces them to change their positions,” he stated.
Cherevatiy reported overcome functions had been also ongoing in the direction of Svatove-Kreminna. Russian forces regroup, check out to counterattack in specific instructions but endure sizeable losses and retreat, he said.
None of the battlefield promises could be independently confirmed.
Watch: In the battle for the jap metropolis of Bakhmut, Ukrainian gunners are hitting Russian troops with Soviet-era Akatsia artillery, coordinating their precision with several spotter drones, they say.
Cherevatiy also commenting on Putin’s get to introduce a stop-fireplace in observance of the Orthodox Christmas getaway.
“Of training course, none of this happened,” he reported.
Presidential adviser Mykhaylo Podolyak on January 7 referred to as Moscow’s stop-fireplace “bogus” and accused Russian troops of firing alongside the overall speak to line.
Putin purchased the stop-hearth to start out at noon on January 6 and past even though midnight on January 7.
The Russian Protection Ministry insisted its forces have been observing the cease-fireplace but also said that the army experienced repelled assaults by Ukrainian forces in jap Ukraine and killed dozens of troopers on January 6.
Putin stood on your own at a company at the Cathedral of the Annunciation in the Kremlin to mark Orthodox Xmas. Illustrations or photos broadcast on Russian tv confirmed him standing at the altar with a clergyman the only other person present.
Russian President Vladimir Putin attends the Orthodox Xmas company at the Kremlin in Moscow on January 7.
In Kyiv, hundreds of worshipers attended a service at the 11th-century Pechersk Lavra as Metropolitan Epifaniy, head of the Orthodox Church of Ukraine, led a Xmas liturgy. He claimed Christmas incites persons to struggle versus evil, sin, and darkness.
“These concerns specially echo in our hearts at the time of the most challenging trials of the war, which our Ukrainian people today are likely through,” he mentioned.
Ukraine did not want the war, which he stated resulted from “devilish malice and envy” on the section of “all those who held us captive” for hundreds of years. Immediately after Ukraine turned unbiased and started off setting up its very own sovereign point out, they “could not tolerate our achievements and achievements” and commenced a war.
“But they will definitely be defeated in it, mainly because the reality is on our side,” he explained.
Epifaniy claimed Ukraine experienced now obtained a moral victory due to the fact all men and women of goodwill “condemn the functions of genocide, terror and several war crimes fully commited by the evil Russian empire on our land.”
The monastery applied to be the seat of a department of the Ukrainian Orthodox Church (UOC) that was formerly beneath Moscow’s jurisdiction. The UOC severed ties immediately after Russia invaded Ukraine in February.
Ecumenical Patriarch Bartholomew congratulated Ukrainians and conveyed his blessings, the press provider of the Ukrainian parliament mentioned on Telegram.
“We pray for the conclude of this unjust war and aggression day and evening, for the Ukrainian individuals, powerful and brave, who dared to protect the integrity and flexibility of Ukraine,” Bartholomew explained. “We are with you by means of enjoy and prayers. We are happy to see that the intercontinental community is also with you. Justice and real truth often wins.”
Ukrainian President Volodymyr Zelenskiy instructed Ukrainians in a information on Orthodox Christmas that he was glad to see the hundreds of worshipers who turned out on January 7 for the holiday getaway provider in the Pechersk Lavra in Kyiv, including Ukrainian troopers.
“It is quite significant that a honest prayer for Ukraine was and will continue on to be read in the Lavra these days,” Zelenskiy explained in a movie message late on January 7.
“The moment once more, I congratulate everybody who celebrates nowadays, on this day, which has by now become historic for Ukraine, for the non secular independence of our people, with a Merry Xmas,” he claimed.
He also inspired Ukrainians to “maintain the temper that was felt nowadays — a temper of pleasure at the strengthening of Ukraine and at the achievement of historic justice.”
Zelenskiy earlier praised the United States for such as tank-killing armored automobiles and anti-aircraft missiles in its January 6 package deal of military support, expressing that they will fortify Ukraine’s military on the battlefield.
“For the first time, we will get Bradley armored automobiles — this is specifically what is required. New guns and rounds, together with substantial-precision kinds, new rockets, new drones. It is well timed and robust,” he mentioned later in his nightly televised handle.
2022 was a quiet year for the Supreme Court in terms of intellectual property (IP) rulings.
The Lone Opinion
Unicolors, Inc. v. H&M Hennes & Mauritz LP: In the only IP-related petition to obtain an issued ruling in 2022, the Supreme Court helped copyright holders avoid invalidation of their copyrights due to inadvertent mistakes in their copyright applications.
Under a provision of the 2008 PRO-IP Act, the Ninth Circuit reversed a nearly $800,000 infringement verdict because it found that Unicolors’ copyright registrations included errors, which the court found Unicolors knew were inaccurate. The Supreme Court reversed the Ninth Circuit’s ruling and sided with Unicolors’ argument that inadvertent legal misunderstandings were not the type of inaccuracies with which the law was concerned.
The Supreme Court noted that “it would make no sense if [the law] left copyright registrations exposed to invalidation based on applicants’ good-faith misunderstandings of the details of copyright law.” The Supreme Court then held that because the Copyright Act does not distinguish between a mistake of law and a mistake of fact, “[l]ack of knowledge of either fact or law can excuse an inaccuracy in a copyright registration.”
Although articulating this safe harbor for copyright holders, the Supreme Court was clear to mention that the safe harbor does not apply if there is evidence demonstrating that the copyright owner actually knew it submitted legally inaccurate information or was willfully blind to the fact. The opinion also notes that an applicant’s experience with copyright law can serve as evidence that they were aware of the legal errors in the filing.
Due to these carve outs in the safe harbor, it is likely courts will apply the safe harbor differently depending on the identity of the copyright applicant. Consequently, a court is likely to apply the safe harbor most liberally where the applicant is an individual author or artist with no prior copyright experience filing their own application, and apply it most strictly where the application is filed by an attorney specializing in copyright law.
What Could Have Been
The lack of substantive opinions from the Supreme Court in 2022 was not due to a lack of petitions. Rather, the Supreme Court declined to hear at least 30 petitions, which involved one or more issues concerning copyright, trademark, patent or trade secret law. Patent law led the charge in 2022 with at least 25 petitions posing patent specific questions. The following are a few of the issues the Supreme Court declined to tackle in 2022.
State Sovereign Immunity and Copyright Infringement: The Supreme Court declined to hear the case of Jim Olive Photography v. University of Houston System in which a photographer sought review of a Texas Supreme Court decision upholding state sovereign immunity to damage claims stemming from the University’s unlicensed use of a copyrighted photo. The photographer sought damages on the theory that appropriation of the photographer’s right to exclude constituted a per se taking by a government entity. The Texas Supreme Court disagreed, holding that there is no taking where the photographer retained the copyright in the photo, and was still free to license it or sell it to others.
As it stands now, despite recent challenges to state sovereign immunity, a copyright holder’s only remedy against a state actor remains injunctive relief.
Patent Eligibility: The Supreme Court declined to hear five petitions, all of which raised issues concerning patent eligibility or application of the Supreme Court’s 2014 ruling in Alice v. CLS Bank.
American Axle & Manufacturing Inc. v. Neapco Holdings LLC was one of the more highly-anticipated petitions pending before the Supreme Court in 2022. Filed in 2020, the petition in American Axle sought review of the Federal Circuit’s 2019 ruling that American Axle’s method to reduce noise and vibrations through the insertion of a liner in its driveshaft was not eligible for patent protection because the process amounted to nothing more than an application of natural law to a complex system.
In 2021, the Supreme Court requested comment from the Solicitor General. The Solicitor General recommended that the Supreme Court hear the issue and provide guidance that could clarify the Supreme Court’s prior rulings in Mayo v. Prometheus (2012) and Alice (2014), which collectively held that laws of nature and abstract ideas are not eligible for patent protection. Despite the Solicitor General’s recommendation, in June, the Supreme Court ultimately declined to hear the appeal. Around the same time, the Supreme Court also declined to grant certiorari in two other cases—Spireon Inc. v. Procon Analytics LLC and Ameranth Inc. v. Olo Inc.—involving issues nearly identical to those in American Axle.
The petition in Yu v. Apple asked the Supreme Court to resolve whether, when applying the test for patent eligibility, a patent claim should be considered “as a whole” or, instead, its “point of novelty” should be determined after all conventional elements of the patent claim have been disregarded. The petition in Yu, which stemmed from Judge Newman’s dissent in the Federal Circuit’s split panel decision, seemed like the perfect vehicle to address the patent eligibility doctrine.
The case of Worlds Inc. v. Activision Blizzard, Inc. involved a petition requesting that the Supreme Court articulate what the appropriate standard is for determining whether a patent is “directed to” a patent-ineligible concept under step one of the Alice two-step framework for determining whether an invention is eligible for patenting under 35 U.S.C. § 101.
For now, given the Supreme Court’s reluctance to revisit its prior precedent, patent practitioners and inventors are left to navigate the continually challenging and uncertain world that is patent eligibility under 35 U.S.C. § 101.
Patent Litigation and Preclusion: Another patent case the Supreme Court declined to hear was PersonalWeb Technologies, LLC v. Patreon Inc., which sought review of the Federal Circuit’s application of the Kessler Doctrine. The Kessler Doctrine precludes a patent holder from later asserting claims against customers of a seller following a failed suit against the seller on invalidity and/or infringement grounds. However, in PersonalWeb, the patent holder voluntarily dismissed litigation against Amazon following a narrow claim construction only to file subsequent litigation against Amazon’s customers. The Federal Circuit applied the Kessler Doctrine and held that the patent holder was precluded from maintaining its suit against Amazon’s customers.
Although PersonalWeb involves a unique set of facts, the Federal Circuit’s apparent expansion of the Kessler Doctrine is a valuable reminder to patent holders to consider and evaluate their patent enforcement strategy, particularly if it requires separate litigation against a seller and its customers.
