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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.
The summary is about as clear as mud, and the underlying story seems to be deliberate obfuscation
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...
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!
Court cases are often named by "X vs. Y" where X is the name of the plaintiff and Y the name of the defendant. In this case, it was shortened to solely "X" which is "Saint Regis Mohawk Tribe" in this case.
And yes, usually the quotation marks are omitted. See, for example, the article in Wikipedia:
https://en.wikipedia.org/wiki/...
> which is ripping off rival pharmaceutical companies?
No, actually, as posted elsewhere here, most of this tribe's income comes from a casino which is legal because of its special legal status.
You can just think of this as the tribe letting these patent owners bet at a really high stakes table, the Federal court system.
(Yes, I realize that gambling income is also not your idea of "the Native Way of Life", but on the other hand, the "non-Native Way of Life" has mostly made "the Native Way of Life" a practical impossibility, so this is the weird result.)
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.
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."
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."
It's actually one of the first links in the summary here:
Basically, we don't recognise your jurisdiction because we're a sovereign nation, so please fuck off.
The courts just told them it doesn't apply here.
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)
I've heard people claim they're being screwed by the government, but I honestly have't ever seen much evidence of this.
The ACLU has, and posts about it somewhat regularly.
and legal issues relating land use and ownership.
Yeah. They're supposed to be in charge of their own lands, right? But then cities make it impossible for them to do things like have events on it. For example, one of the local tribelets of Pomos wanted to host the Northern California Renaissance Faire in Nice, CA. But the rich old white cocks who have been crapping up Lake County, CA since time was time prevented it. Told them they couldn't do it because of traffic issues, etc etc. Meanwhile they have the largest Bass tournament in the country there. It packs the county with fish-lovin' tourists.
A municipality is obviously going to have all kinds of legal issues building on sovereign soil that obviously doesn't belong to them and isn't subject to things like eminent domain laws.
They also cause all kinds of legal issues with effective use of that sovereign soil.
However, I was really referring to more personal issues, like police selectively enforcing the law against them just as they do against other brown people, only moreso. There is institutionally entrenched racism against them which is fostered and encouraged by police leadership.
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
Um, no. That's not how it works at all.
The legal reasoning is that for a state like mine, during it's early history (frequently before statehood), the federal government obtained title to the land by entering into treaties with various existing nations. The treaties (to oversimplify) had the clauses that the nations would give up one section of land, and in exchange, the government would recognize the right to the remaining land they had. This has been interpreted as meaning the nations never gave up their right to internal-self rule, and thus, when there's a casino or cigarettes, it's not because they are flouting state law, but because state law doesn't apply. In effect, the various nations ended up as domestic dependent nations, where the federal government handles their external affairs, and the nations handle their own internal affairs.
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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The is a deeper legal framework at play here. Certain, not all, Native American nations are legal entities in their own right. They have sovereignty under U.S. law, typically recognized under treaties that were signed between these nations and the United States Federal government.
In this way they are more or less equivalent to the States themselves in their legal rights. So the States are not "allowing" Native Americans the skirt state laws, the members of particular Nations are not subject to them, particularly on lands owned by the tribes which are technically not within the boundaries of the states, but are sovereign nations. That's what "sovereign" means, power not legally curtailed by a higher political entity. They are, however bound by such Federal laws as are either articulated by treaty or accepted by both political entities.
Hence the federal court's authority to say their sovereign does not apply in this case.
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.
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/...
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.
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.