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Gesture Technology Partners, LLC v. Vidal

Docket 1:22-cv-00622, Virginia Eastern District Court (May 27, 2022)
District Judge Rossie D. Alston, Jr, presiding, Magistrate Judge John F. Anderson
Patent
DivisionAlexandria
FlagsPATENT
Cause05:0701 Maritime Subsidy Board
Case Type830 Patent
Tags830 Patent, 830 Patent
Patent
7933431; 8194924; 8553079; 8878949
7933431
819492485530798878949
Plaintiff Gesture Technology Partners, LLC
Defendant Katherine K. Vidal
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No. 17 MOTION to Dismiss by Katherine K. Vidal

Document Gesture Technology Partners, LLC v. Vidal, 1:22-cv-00622, No. 17 (E.D.Va. Aug. 5, 2022)
Motion to Dismiss (Demurrer)
KATHERINE K. VIDAL, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office,
Defendant, Katherine K. Vidal, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, through her undersigned counsel, respectfully submits this motion to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).
The grounds for this motion are set forth in the accompanying memorandum of law.
Dated: August 5, 2022
Respectfully submitted,
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No. 1 Complaint for Declaratory and Injunctive Relief ( Filing fee $ 402, receipt number AVAEDC-8409762

Document Gesture Technology Partners, LLC v. Vidal, 1:22-cv-00622, No. 1 (E.D.Va. May. 27, 2022)
Complaint
KATHERINE K. VIDAL, in her official capacity as Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, Defendant.
In exercising its “significant latitude,” Congress grants public franchises “subject to the qualification that the PTO has the authority to reexamine—and perhaps cancel—a patent claim in an inter partes review.” Id. at 1368, 1374 (internal quotation marks omitted).
Permanently enjoin Defendant, and her officers, agents, employees, assigns, and all persons acting in concert or participating with her from continuing the IPRs against the expired GTP Patents;
Issue a preliminary injunction enjoining Defendant, and her officers, agents, employees, assigns, and all persons acting in concert or participating with him from continuing the ex parte reexaminations of the expired GTP Patents;
Permanently enjoin Defendant, and her officers, agents, employees, assigns, and all persons acting in concert or participating with her from continuing the ex parte reexaminations of the expired GTP Patents;
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No. 18 Memorandum in Support re 17 MOTION to Dismiss filed by Katherine K. Vidal

Document Gesture Technology Partners, LLC v. Vidal, 1:22-cv-00622, No. 18 (E.D.Va. Aug. 5, 2022)
Motion to Dismiss (Demurrer)
Director of the United States Patent and Trademark Office, by and through her undersigned counsel, respectfully submits this memorandum of law in support of her motion to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).
As noted above, Congress explicitly duplicated this very same process for the conduct of both ex parte reexamination proceedings, with only one exception—a single avenue for Article III judicial review through a direct appeal in the Federal Circuit.
This comprehensive scheme makes it “fairly discernible” Elgin, 567 U.S. at 10, that Congress wanted to preclude district court review of issues occurring within ex parte reexamination, especially before the conclusion of the administrative proceedings.
The APA does not independently provide this Court with jurisdiction; it instead waives the federal government’s sovereign immunity for a limited set of suits brought by a person alleging a legal wrong because of agency action to obtain relief other than money damages.
(holding that USPTO’s decision to institute “post-grant” review – another relative of ex parte reexamination – did “not result in the determination of legal rights or obligations” under Bennett, and thus was not final agency action for APA purposes), aff’d on other grounds, 793 F.3d 1352 (Fed. Cir. 2015); Heinl v. Godici, 143 F. Supp.
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