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July 26, 2018 10:00 am

Native American Tribe Can't Be a 'Sovereign' Shield During Patent Review, Says Court

Cyrus Farivar writes via Ars Technica: In a unanimous decision, an appellate court has resoundingly rejected the legal claim that sovereign immunity, as argued by a Native American tribe, can act as a shield for a patent review process. On July 20, the United States Court of Appeals for the Federal Circuit found in a 3-0 decision that the inter partes review (IPR) process (a process that allows anyone to challenge a patent's validity at the United States Patent and Trademark Office) is closer to an "agency enforcement action" -- like a complaint brought by the FTC or the FCC -- than a regular lawsuit. This case really began in September 2015. That was when Allergan, a pharma company, sued rival Mylan, claiming that Mylan's generics infringed on Allergan's dry eye treatment known as Restasis. Saint Regis Mohawk Tribe was initially filed in the Eastern District of Texas, known as a judicial region that is particularly friendly to entities that are often dubbed patent trolls. By 2016, Mylan initiated the IPR. But Allergan, in an attempt to stave it off, struck a strange deal, transferring ownership of the six Restasis-related patents to the Saint Regis Mohawk Tribe, based in Upstate New York, near the Canadian border. As part of that deal, Allergan paid $13.75 million to the tribe, with a promise of $15 million in annual payments -- if the patents were upheld, that is. The Mohawk Tribe attempted to end the IPR, citing sovereign immunity, which was denied. The tribe struck at least one other similar deal with a firm known as SRC Labs, which sued Amazon and Microsoft.

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