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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.
If you're interested in the relation between native american tribes and misuse of sovereign immunity, I can recommend The Whistler by John Grisham, a nice read. https://en.wikipedia.org/wiki/...
Actually, no. Identity politics and tribalism (quite literally) have no place in the US, and that's good thing.
OK, and what is a 'shield' in this sense?
> Saint Regis Mohawk Tribe was initially filed in the Eastern District of Texas
What the hell is that supposed to mean?
The summary is about as clear as mud, and the underlying story seems to be deliberate obfuscation
Native American tribes are exempt from many laws. List of 511 "indian" gaming operations https://www.500nations.com/Indian_Casinos_List.asp
No one is telling them what to do. What they are saying is that their ownership of a patent is not enough grounds to stop review of said patent.
If construction was anything like programming, an incorrectly fitted lock would bring down the entire building...
... which is ripping off rival pharmaceutical companies? Somehow that does not seem like a traditional lifestyle.
I am all for autonomous, but this seems more like a tax haven than autonomy to me.
Their casino isn't bad, as casinos go. Was only there on the off season, though.
But diversifying into taking money for no reason from patent trolls --- I'm all for it!
While I'm against tribes abusing their sovereignty to shield scammers and now patent trolls apparently, I'm also rooting for anyone who takes on Mylan. That's the company which charges 400x the cost of producing the EpiPen that's been in production for decades and prevents anyone from creating a generic alternative due to their strictly enforced patent.
It doesn't exist you fool.
the drug companies were trying to find a way to be exempt from law
And this surprises you somehow? Sounds like business as usual to me.
I find it appalling the length companies will go to undermine the rule of law.
It should be appalling. Yet we have an entire major political party which spends considerable energy towards eliminating regulations that prohibit companies from doing just that.
The US culture of profit at any cost and loss of morality is disheartening.
US culture is hardly alone in an over enthusiasm for profits and damn the consequences. And not everyone in the US is on board with profit at any cost. Just enough people to make it a real problem. That said, a profit motive is a useful thing, provided it is adequately constrained with rules to keep things reasonably fair and in the public interest. It's only a problem when we start pretending that free markets and profit motives will actually solve the problems caused by failed free markets and unchecked profit motives.
If you write open source code, you need to be at least somewhat aware of copyright and patent laws.
"First they came for the slanderers and i said nothing."
Actually, no. Identity politics and tribalism (quite literally) have no place in the US, and that's good thing.
Look around you. That is manifestly untrue. You may prefer it otherwise, but tribalism and identity politics are alive, well, and thoroughly embedded in American culture. They are as American as chanting, "USA! USA!"
"What the American public doesn't know is what makes them the American public." -Ray Zalinsky (Tommy Boy)
Natives* are targeted for abuse nationwide. Well, in the parts of the nation our government didn't genocide them the fuck out of, anyway. I may be a little bit biased because I've actually known natives, worked with them, hung out with them... biased towards treating them as humans, that is. And our government doesn't do that. It gives them a paltry amount of money, but it doesn't make up for anything. It's basically a payment to justify past, present, and future abuse.
* OK, no such thing really... Remember the Clovis People, or something. But it's the generally accepted term. I don't give a shit who was where first, but about how people are treated.
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
You think patent law is something tech nerds in general aren't interested in? Are you new here?
-- All that is necessary for the triumph of evil is that good men do nothing. -- Edmund Burke
We probably should have force them to assimilate thoroughly , it would have been less troublesome today.
I think it's pretty obvious what really happened here: The original patent holders were openly suckered by the tribes. Let's look briefly at the events preceding this point in the story:
Allergan had some patents which they were using in Eastern Texas to assert some potentially highly lucrative claims. The winds turned, patent protections were weakened nationwide, and it became clear that their patents were about to be invalidated. They paid millions to a tribe to "shelter" those patents behind their sovereign immunity privileges. Also note that this wasn't an isolated incident: other patent holders followed a similar pattern, with other tribes.
So, what were the tribes responsibilities, in these business deals? Well... for all practical purposes, their responsibilities were little more than paying a lawyer, which was easily affordable after their new windfall. Other than that, they could simply sit back, buy a few expensive bottles of wine to celebrate, and start dreaming up cool ways to spend the rest of their cash. Sounds like it was an amazing deal from their point of view, even if the patents had been invalidated immediately.
Personally, I think the tribes knew exactly what they were doing; they had no expectations of their windfall remaining in play, long-term. In theory, perhaps they could "lose" a privilege supposedly associated with their sovereign immunity -- which is apparently what we're reading about now -- but they clearly weren't taking advantage of that privilege, anyway. And the risk of entirely losing sovereign immunity was practically nonexistent, since that would involve an act of Congress. So basically, they had everything to gain and nothing to lose.
In short: Allergan (and others) got suckered out of millions... because, in attempting to protect their own snake oil, they ended up falling for someone elses snake oil. (Somehow, I just can't find it in me to feel sorry for them.)
I do not condone such nationalism either.
Or rather: The transfer ought to automatically invalidate the patents. You can have all the patents covering the jurisdiction of your own little piece of reservation land, but the US does not allow other countries or sovereign entities to grant themselves patent rights over American persons on American soil.
Oh, please.
Before Europeans came along various tribes and nations of Native Americans were busy fighting each other over territory and resources just like their European cousins. Read up on the Aztecs. Many of the traditional areas ascribed to tribes are based on where they were when Europeans met them. Search back 100 years and you find that their distribution is different, based on migration, conquest and warfare. Being basically stone age civilizations they were simply less effective than their Iron and industrial age opponents.
All this case says is that you can't violate a patent by assigning it to someone outside the U.S. It wouldn't have been found a valid tactic if it had been Canada or Moldova either.
Yes, the various bands were promised, by treaty (the highest law in the land as I understand it) and by later court verdicts, that they would be sovereign on their own land. But this has always been an empty promise. Any time it turned out they were sitting on land that turned out to be valuable, it just got taken away. Despite being sovereign nations in their own right, their young men were (and still are) subject to the draft. Despite being sovereign, federal law enforcement agencies have had a piss poor track record of respecting that and engaging in proper cooperation with any reservation police. In short, America (and Canada) have only allowed the native peoples a limited form of autonomy NOT sovereignty and always ignored even that when convenient.
With that kind of track record in place, I don't see how the St Regis Mohawk ever thought it might work. Mind you, that first 13.75 million was certainly welcome.
There's another angle by which this would have failed as well. Lets suppose, for the sake of argument, that the sovereign claims were upheld (ignoring the fact that questions of sovereignty are only properly address by Congress, not a lower Federal court). You would end up with a situation analogous to one company using a patent granted in the US while another company is paying for the license rights to a very similar US patent owned by the government of Canada so they can market a competing drug in the US. And if I read the summary right, it is on this basis that the judge ruled that a patent review can proceed. Regardless of who owns the patents, they are still patents issued by the US government for products being sold in the US.
Cynically of me, I don't think anybody involved expected this tactic to really work. They just thought it would long enough to make some money for them.
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Sure, we told the that their reservations were sovereign territory
That's just a convenient fiction to make everyone involved feel better. They have no monetary system, no independent economy, no military, no ability to maintain relations with other nations, and no control over their borders. The idea that they're "sovereign" in any meaningful sense of the word is absurd. At best they're a "sovereign state" in the same way that Texas or California are; able to pass and enforce laws within their own territory, but subject to most of the same federal regulations as any other state.
Nobody was trying to get them to assimilate. They massacred them, then drove out the survivors to land nobody wanted. Then, when people wanted that land they drove them out again, sometimes forcing them to walk vast distances without adequate supplies - in massacres only slightly less destructive than the original ones.
Assimilation would have involved giving them legal property and civil rights that would be honored, rather than sovereign immunity via treaties which were universally discarded as soon as they became inconvenient to the U.S. business interests of the day.
--- Most topics have many sides worth arguing, allow me to take one opposite you.
Neither do I. Sadly, what we do or do not condone has no impact on what does and doesn't have a place here. It is here. It has been here since the beginning, and been embraced by both the public and those with power pretty much the entire time. Some of us may wish to eliminate it, but to say it has no place here is to deny past and present reality.
--- Most topics have many sides worth arguing, allow me to take one opposite you.
The US government did try to force them to assimilate. They forcibly took children from their families and made them attend boarding schools that forbade the culture which they came from.
https://www.history.com/news/h...
https://en.wikipedia.org/wiki/...
"War Dance!!!"
We play the game with the bravery of being out of range
I still miss the clarity that Pam brought to the Law intersecting technology.
I learned enough from Groklaw to understand the outline of what this case means, but the fine points....
I have a solution.
First, we seal all the lawyers in an airtight room.
-- Tigger warning: This post may contain tiggers! --
Actually, the various tribes were not necessarily warring with each other, at least not the ones in the western part of what is now the U.S. That notion was propaganda to help the conquerors rationalize their cause to be "just". The books "Thunder Over the Ochoco" go into this in great detail - a very interesting read.
Did you reply to the right comment? You seem rather tangential. My entire point was that natives were routinely stripped of their acquired and inherited wealth, at gunpoint, and were never really granted any civil rights whatsoever until recently - only the temporary respecting of of tribal sovereignty until it became inconvenient to do so, at which point they were stripped of any rights at all.
In the long term they might have been better off being granted citizenshp - but nobody with any power had any intention of doing that.
And what exactly is SSS referring to? In context it sounds a bit genocidal, but I'll give you the benefit of the doubt.
--- Most topics have many sides worth arguing, allow me to take one opposite you.
I was referring to the beginning of the U.S., arguably 1492 - humans haven't existed since any more fundamental beginning. But tribalism seems to have accompanied humanity from it's beginnings as as a technological species, and followed the early migrants to this continent, along with the several subsequent migrant waves, including the final (to date) European one.
Tribalism has been part of humanity, and part of the United States, since the beginning of each. You need only look at the ever-thriving anti-immigrant propaganda spread in early media to see for yourself - there've always been the unwanted - the Irish, the Germans - take your pick. Anyone with notable cultural differences has always been demonized in this country, and as the melting pot integrated their culture into its own - well then it shifted to "whites versus coloreds" - finally uniting the various "white races" only when there were enough non-whites to maintain similar levels of outrage, and this time without the possibility of integration. Division within the working classes has long been an important tool used by the powerful to maintain their position.
--- Most topics have many sides worth arguing, allow me to take one opposite you.
I have Native American friends so I've frequented reservations. They're like southern trailer parks but without the pizaz. We didn't just stick them on reservations, we stuck the reservations on the crummiest land in the country. When you're that dirt poor you're too busy trying to survive to worry about others. It's a classic technique of any ruling class: keep everyone on the verge of disaster so they won't band together to help each other out.
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However the laws of the US override your theory. The constitution takes precedence over "might makes right", and so the treaties we make with the tribes have the force of law (assuming the US attempts to hold up the treaties).
Sovereign in the sense that the US passed treaties saying so. While it's true that these treaties are not often upheld, the current state of the law in the US is that native American tribes enjoy an amount of sovereignty and autonomy on their reservations.
How is that not what I just said? Try rereading the first sentence of the second paragraph. Everything else is about the U.S., because that's the country being discussed.
--- Most topics have many sides worth arguing, allow me to take one opposite you.
Why would they bother? When did they ever need to rationalize it, and to who?
Just another day in Paradise
If the US passed treaties saying that PI is exactly 3, it still wouldn't make it so.
In reality, the tribes do indeed have an amount of sovereignty and autonomy. I didn't say that it should be that way or not, just that this is the way it is in practice today in law.