NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

SWEEPSTAKES PATENT COMPANY, LLC,

Plaintiff-Appellant

INGENIO, FILIALE DE LOTO-QUEBEC INC.,

Plaintiff

v.

CHASE BURNS, INTERNATIONAL INTERNET 

TECHNOLOGIES, LLC, ALLIED VETERANS OF 

THE WORLD, INC., AND AFFILIATES, ALLIED 

VETERANS MANAGEMENT GROUP, INC., 

JOHNNY DUNCAN, JERRY BASS, JOHN M. 

HESSONG, MICHAEL DAVIS,

Defendants-Appellees

______________________ 

2014-1851

______________________ 

Appeal from the United States District Court for the 

Middle District of Florida in No. 6:14-cv-00151-ACC-KRS, 

Judge Anne C. Conway.

______________________ 

Decided: April 20, 2015

______________________ 
2 SWEEPSTAKES PATENT COMPANY v. BURNS

JOEL B. ROTHMAN, Schneider Rothman IP Law Group, 

Boca Raton, FL, argued for plaintiff-appellant. Also 

represented by JEROLD I. SCHNEIDER. 

STEPHEN D. MILBRATH, Allen, Dyer, Doppelt, Milbrath 

& Gilchrist, P.A., Orlando, FL, argued for defendantsappellees. 

______________________ 

Before PROST, Chief Judge, CLEVENGER and SCHALL,

Circuit Judges.

PROST, Chief Judge. 

Sweepstakes Patent Company, LLC (“SPC”) waived 

its right to appeal the issue of whether the district court 

should have applied Quebec Law. Thus, we affirm the 

district court’s grant of the motion to dismiss for lack of 

standing.

BACKGROUND

This case involves the invention of a new method and 

system for playing an interactive lottery game. The 

method was invented by Mr. Perry Kaye, who obtained 

two patents covering his invention, U.S. Patent Nos. 

5,569,082 and 5,709,603 (“patents”). On March 5, 1999, 

Mr. Kaye sold the patents to Ingenio and Ingenio agreed 

to license the patents back to Mr. Kaye’s company, Gizmo 

Enterprises, Inc. (“Gizmo”) for use in two fields: charitable 

lottery games and promotional games. The license 

agreement included an applicable law section, which 

contains a forum selection clause and a choice of law 

clause, and detailed requirements for when Gizmo had to 

receive Ingenio’s permission to file a patent infringement 

suit. In August 2012, Gizmo assigned its rights under the 

license agreement to SPC. 

On January 29, 2014, SPC filed a lawsuit against 

Chase Burns; International Internet Technologies, LLC; 
SWEEPSTAKES PATENT COMPANY v. BURNS 3

Allied Veterans of the World, Inc.; et al. (“Defendants”) for 

induced, direct, and contributory infringement of the

patents. In response, Defendants filed a motion to dismiss for lack of standing, or in the alternative a motion to 

stay. SPC included Ingenio as a nominal plaintiff. Ingenio in turn filed a Rule 11 motion against SPC alleging that 

SPC filed the complaint knowing that it did not have 

standing, as SPC had not received written consent from 

Ingenio as required by the license agreement. Following 

Ingenio filing a Rule 11 motion, SPC filed a cross-claim 

against Ingenio seeking a declaration that SPC had 

standing to sue under the license agreement. In response, 

Ingenio filed a motion to dismiss the cross claim for lack 

of standing. The district court held a hearing on July 22, 

2014 to address various motions, including the motions to 

dismiss. 

The district court granted both the Defendants’ and 

Ingenio’s motions to dismiss, but denied as moot the 

Defendants’ alternative motion to stay the case. The 

district court additionally denied Ingenio’s motion for 

Rule 11 sanctions. The district court’s decision to grant 

the motions to dismiss was grounded in the fact that SPC 

did not meet the standing requirements to bring a patent 

suit. Specifically, the district court found that under the 

plain language of the license agreement SPC had to 

obtain Ingenio’s prior written consent to institute any 

claim or legal proceeding relating to the patents. As SPC 

failed to obtain Ingenio’s written consent, the district 

court held that SPC lacked standing to bring the suit.

DISCUSSION

SPC argues that the district court improperly failed to 

apply foreign law when the court interpreted the license 
4 SWEEPSTAKES PATENT COMPANY v. BURNS

agreement.1 The Defendants respond that the argument 

was waived because SPC never raised this argument with 

the district court. We agree with the Defendants. 

Waiver is governed by local circuit law, in this case 

the Eleventh Circuit. Innogenetics, N.V. v. Abbott Labs., 

512 F.3d 1363, n. 5 (Fed. Cir. 2008). Under Eleventh 

Circuit case law, the doctrine of waiver prohibits parties 

from raising new arguments on appeal that were not 

raised at the district court. See, Mesa Air Grp. v. Delta 

Air Lines, Inc., 573 F.3d 1124, 1128-29 (11th Cir. 2009)

(finding that where a party had failed to present a choiceof-law issue to the trial court, the issue was waived on 

appeal). Additionally, apart from Eleventh Circuit case 

law, Federal Rule of Civil Procedure Rule 44.1 (“FRCP 

44.1”), entitled Determining Foreign Law, reads in relevant part, “A party who intends to raise an issue about a 

foreign country’s law must give notice by a pleading or 

other writing.” 

SPC fails to provide any evidence that it preserved 

the argument it now raises on appeal. First, SPC’s briefs 

do not provide a single citation to the record that would 

satisfy FRCP 44.1. While SPC argues that it put the 

district court on notice because “[t]he District Court had 

the License Agreement before it, reviewed it, and posed 

the question during oral argument about whether the 

District Court or a Court in Canada should interpret the 

License Agreement since the License Agreement also had 

a forum selection clause,” Reply Brief 2, this statement 

does not satisfy the requirements of FRCP 44.1. FRCP 

44.1 requires a pleading or a writing—simply attaching a 

contract to a motion does not qualify as either a pleading 

or a writing. Furthermore, the quoted language refers to 

the forum selection clause, not the choice of law clause, 

1 SPC makes no claim that the district court misinterpreted the contract under Florida law. 

 
SWEEPSTAKES PATENT COMPANY v. BURNS 5

and thus fails to put the district court on notice as required by FRCP 44.1. 

Second, at oral argument, SPC was asked repeatedly 

to provide a citation to the record to where it preserved its 

appeal. The one citation that SPC did eventually provide 

the court was to a sentence in SPC’s Memorandum in 

Opposition to Motion to Dismiss. Oral Arg. at 33:00, 

available at http://oralarguments.cafc.uscourts.gov/

default.aspx?fl=2014-1851.mp3. The cited language 

reads: “Furthermore, the issues raised on the Cross-Claim 

are either not issues of Quebec law, or if Quebec law does 

apply then this Court can easily construe Quebec Civil 

law.” JA 1250. However, this single sentence also fails 

to comply with FRCP 44.1 as it simply indicates that the 

application of foreign law may be an issue, not that it is 

an issue that should be addressed by the district court. 

Third, and finally, SPC argues that the burden was on 

the district court to inform the parties that it would 

construe the contract under Florida law, rather than 

Quebec law. This fundamentally misses the point of 

FRCP 44.1. FRCP 44.1 squarely places the burden on the 

party wishing to have the court apply foreign law, not on 

the court. 

Beyond failing to comply with FRCP 44.1, SPC’s 

briefing to the district court specifically maintained that 

the license agreement should be interpreted under its 

plain meaning.2 SPC argued that “[it] has Standing 

under the Plain Language of the License Agreement.” 

J.A. 695 (emphasis omitted). In fact, SPC never even 

mentions Quebec law in reference to the proper interpretation of the contract language. Thus, SPC went beyond 

2 SPC now argues that the license should have been 

construed under Quebec law, which does not match Florida’s rules of contract interpretation.

 
6 SWEEPSTAKES PATENT COMPANY v. BURNS

simply failing to provide the court appropriate notice—it 

affirmatively argued to the district court for the plain 

reading of the license agreement. 

Accordingly, as Sweepstakes did not raise the argument that the license agreement should be interpreted 

under Quebec law to the district court, it has waived that 

argument here. 

We have reviewed SPC’s remaining arguments and 

find them unpersuasive. 

CONCLUSION

It is simply too late now for SPC to come to us and 

complain about the district court’s construction of the 

license agreement. Therefore, for the reasons stated 

above, we affirm the judgment of the U.S. District Court 

for the Middle District of Florida. 

AFFIRMED