California Beats Cap-and-Trade Patent Infringement Appeal Again

Written September 4, 2020

The US Court of Appeals for the Federal Circuit on August 21, 2020, held that the owner of an emissions trading-related patent can’t sue California for infringement a second time after his first suit was dismissed. Sowinski v. Cal. Air Res. Bd., Fed. Cir., No. 19-1558, 8/21/20.

Sowinski owns a patent related to an electronic apparatus for validating and trading consumer pollution control tax credits. Sowinski sued the state of California in 2015, alleging its cap-and-trade auctions infringe his patent, however the district court dismissed the suit with prejudice, and the Federal Circuit affirmed.

In 2018, Sowinski filed a substantially identical suit but sought damages for infringing activity after the Federal Circuit’s decision in the earlier case. The trial court dismissed the case as barred by the prior dismissal. The Federal Circuit agreed, citing Ninth Circuit precedent that dismissal for failure to prosecute should be treated as an adjudication on the merits for the purposes of preclusion.