Digest of Sweepstakes Patent Co. v. Burns, No. 2014-1851, (Fed. Cir. Apr. 20, 2015) (non-precedential). On appeal from M.D. Fla. Before Prost, Clevenger, and Schall.

Procedural Posture: Plaintiff, patent licensee, appealed on the issue of choice of law. CAFC affirmed the district court’s grant of motion to dismiss for lack of standing.

  • Standing: The district court did not err in finding that the plaintiff lacked standing to bring the suit. The district court found that under the plain language of a license agreement, plaintiffs were required to obtain prior written consent prior to bringing any suit relating to the patent. However, the plaintiffs failed to obtain consent, and therefore lacked standing.
  • Waiver: The plaintiff appealed, arguing that the district court applied the wrong choice of law in construing the license agreement, and should have applied Quebec law. The CAFC found that the plaintiff had failed to place the district court on notice that foreign law was applicable. Fed. R. Civ. P. 44.1 requires that the party wishing to have the court apply foreign law must give notice by a pleading or other writing. The CAFC found the record absent of any such notice. Therefore, this issue was waived and cannot be presented on appeal.