Return Mail, Inc. v. United States Postal Service

An important threshold issue before the court is whether the United States-and its agency the United States Postal Service are within the definition of “person” in § 18(a)(1)(B) of the America Invents Act, and thus entitled to proceed under that Act. The panel majority states that the appellant waived the issue because it was not raised in its opening brief. Maj. Op. at 1364-65. However, matters of jurisdiction are not subject to disposition by waiver.

My colleagues hold that the question of whether the government is a “person” subject to the AIA was waived by the parties’ failure to object.…