Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville.
No. 3:18-cv-00186—Travis Randall McDonough, District Judge.
Argued: June 9, 2022
Decided and Filed: August 23, 2022
Before: WHITE, BUSH, and READLER, Circuit Judges.
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OPINION
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JOHN K. BUSH, Circuit Judge. Before us are two appeals that arise from the same
intellectual-property dispute. Relevant to both, the testing company ACT, Inc. (“ACT”) asserts
that its former-partner-turned-competitor, Worldwide Interactive Network, Inc. (“WIN”),
infringed ACT’s copyright in its “Skill Definitions.” Skill Definitions are, in essence,
descriptions of the various workplace skills that ACT intends to test with its career-readiness
assessments. ACT markets those assessments to schools, workplaces, and state departments of
education.
After the parties’ relationship soured, WIN began to market its own career-readiness
assessments that purported to test various “Learning Objectives”—descriptions of workplace
skills suspiciously similar to ACT’s Skill Definitions. In response, ACT filed suit. The district
court awarded partial summary judgment to ACT on its copyright-infringement claims and later
preliminarily enjoined WIN from continued infringement. WIN’s first appeal concerns the
imposition (and scope) of that preliminary injunction. Finding WIN’s objections unpersuasive,
however, we affirm.
We then turn to WIN’s second appeal, which concerns a distinct but related issue. After
WIN began to infringe ACT’s Skill Definitions once again with a set of “revised” Learning
Objectives, the district court ordered ACT to amend its complaint with new allegations that the
revised Learning Objectives are likewise infringing. In response to the amended complaint,
WIN filed an amended answer asserting a never-before-offered defense: that because WIN
designed the Learning Objectives to bid on various state contracts, it was entitled to assert those
states’ sovereign immunity from the copyright claims—so-called “derivative sovereign
immunity.” See Am. Answer ¶¶242–44, R. 551. But the district court struck the new defense as
both untimely and “frivolous.” Relying on the timeliness ground alone, we affirm that decision
as well. |