Federal Circuit: Unanswered Motions Doom Ticketing Patent Appeal
A patent owner who never answered the motions to dismiss her case cannot raise her arguments for the first time on appeal, the US Court of Appeals for the Federal Circuit ruled on 26 October 2026. The nonprecedential per curiam decision in Gurvey v. Live Nation Entertainment, Inc. (appeal 25-1954), issued by Judges Stoll, Cunningham and Stark, affirms the dismissal of a suit brought in the Central District of California.
Amy Weissbrod Gurvey says she owns several US patents covering a system for managing ticketing and sports betting. According to the opinion, she has sued various combinations of the same defendants in federal and state courts since at least 2006. The defendants in this round included Live Nation and its Ticketmaster unit, Major League Baseball and its digital arm, the band Phish's company, and several law firms.
She filed the California complaint in June 2023. The district court's standing order gave parties two weeks to oppose a motion. Gurvey missed that window, received an extension to 2 February 2024, and still filed nothing. In September 2024 the court granted the unopposed motions for all defendants except Baker Botts. In March 2025 it refused to reconsider and dismissed the claims against Baker Botts on the merits under the Noerr-Pennington doctrine, which shields petitioning activity such as litigation.
On appeal, Gurvey argued that the trial judge had thrown out her case on its own initiative. The panel disagreed: the defendants had moved to dismiss, and the court had simply granted motions she left unanswered despite repeated chances. Because her substantive points were never put to the trial court, they were waived. The panel also noted that Gurvey describes herself as a California lawyer in good standing, so her silence could not be excused as the slip of an inexperienced self-represented party. She did not contest the Noerr-Pennington ruling at all, which waived that issue too.
The lesson is procedural rather than technical. Patent claims are only as strong as the record built for them, and an appeals court will not hear arguments that a party chose not to make below.
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