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IP & Regulatory Law Blog Reflections of a former regulator on FTC and IP issues

WHERE’S THE BEEF? THE NEBRASKA ARGUES NO CLAIM OR CONTROVERSY WITH ACTIVISION

Posted in Patents

As I previously posted, Activision filed a Complaint in U.S. District Court challenging the Nebraska Attorney General’s Office’s prior cease and desist letter to a law firm called Farney Daniels.  Last week, the Nebraska Attorney General’s Office fought back in its quest to curb troll activity when it filed its Brief in opposition to Activision’s Complaint and Motion for Preliminary Injunction.  The AG’s Office asked the Court to dismiss the Complaint for, among other things, failure to state a claim and/or to deny Activision’s preliminary injunction request.

One of its stronger arguments appears to be the Court’s lack of subject matter jurisdiction. The AG’s Office points out that its cease and desist letter was to Farney Daniels and not to Activision. It also noted that its prior prohibition pertained to “new” matters and Activision’s matter was filed 6 days before the AG’s Office even issued its letter to Farney Daniels.  Thus, there is no “case or controversy” between the parties.

The AG’s Office also argued that Activision couldn’t meet its preliminary injunction burden of showing that it would likely succeed on the merits. It creatively argued that Activision cannot show that Farney Daniels’ actions didn’t constitute unfair or deceptive trade practices under Nebraska state law.  If this case doesn’t get dismissed for lack of subject matter jurisdiction, it will be interesting to see how the Court analyzes Farney Daniels’ patent enforcement efforts under the Nebraska Consumer Protection Act.