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Court: Native American tribe can't be a "sovereign" shield during patent review

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 is closer to an "agency enforcement action"—like a complaint brought by the Federal Trade Commission or the Federal Communications Commission—than a regular lawsuit. IPR is a process that allows anyone to challenge a patent's validity at the United States Patent and Trademark Office—it was used famously in 2017 to reject the "podcasting patent."

"This win is a victory in our ongoing efforts to stop patent abuses by brand companies and to help drive access to more affordable medicine," Mylan CEO Heather Bresch said in a statement on July 20. "Today's ruling reaffirms that Allergan's attempt to leverage the Saint Regis Mohawk Tribe for patent protection represents another inappropriate tactic to delay the availability of generic medicines for patients who need them."

This case, Saint Regis Mohawk Tribe, Allergan Inc. v. Mylan Pharmaceuticals et al, 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.

Previously: Allergan Pulls a Fast One
Congress Will Investigate Drug Company That Gave Its Patents to Mohawk Tribe
Bill Introduced to Close Allergan's Native American "Sovereign Immunity" Patent Loophole

Original Submission