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Native American Tribe Can't Be a 'Sovereign' Shield During Patent Review, Says Court (arstechnica.com)
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.
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.
Many states in the U.S have allowed the natives to skirt around various laws for god knows how many years as sort of repayment for what their ancestors did to them. To a foreigner like myself it seems to be pretty absurd, but to some people the idea of having the natives subject to the same laws as everyone else is somehow repressive.
Most of what they use their sovereign status for is skirting around gambling laws, but you do from time to time hear about suspect alliances like this where tribes help people get around various laws. Last example I heard of was one payday loan company, who operated in a different state, who used the claim of being associated with a tribe to skirt around loads of financial regulations. Thankfully the authorities saw right trough it and just dismantled the whole company. Even went as far as putting their executives in jail, thou one avoided jail by committing suicide, and having them forfeit most of their property.
The most shocking thing about that case was how dismissive the members of the tribe were to the distress of the people screwed over by the company, how they didn't see anything wrong with what the company did and how after the company's justified demise they were in the process of building up a similar enterprise themselves.
"Why should I want to make anything up? Life's bad enough as it is without wanting to invent any more of it."