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

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.