Posts Tagged: "sovereign"

Senator McCaskill (D-MO) has introduced a bill to abrogate the sovereign immunity of Indian tribes as a defense in inter partes review (IPR) proceedings at the United States Patent and Trademark Office. Indeed, the sole purpose of McCaskill’s short, ill-conceived and hastily assembled bill is to make it impossible for Native American Indian Tribes that own patents to assert sovereign immunity when those patents are challenged in proceedings at the Patent Trial and Appeal Board… What this means is McCaskill’s bill cannot and will not remove claims of sovereign immunity from PTAB proceedings. McCaskill’s bill would only discriminate against Native American Indian Tribes.

Earlier today the Saint Regis Mohawk Tribe filed a Motion to Dismiss in six separate inter partes review (IPR) proceedings relating to the Allergan drug RESTASIS®. The RESTASIS® patents were recently all assigned by Allergan to the Tribe, with the Tribe granting back to Allergan an exclusive license… As the Motion to Dismiss points out, the petitioners can have an opportunity to challenge these RESTASIS® patents in federal district court. “The Tribe will not assert sovereign immunity in the Eastern District of Texas case,” the Motion to Dismiss reads. ” So dismissing this case does not deprive the Petitioners of an adequate remedy; it only deprives them of multiple bites at the same apple.”

The tribe is raising a sovereign immunity defense in the case as the tribe is a sovereign entity which is not amenable to a suit unless it consents or Congress abrogates its immunity. Shore argued that the sovereign immunity defense is based on binding Supreme Court precedent. “It would frankly be unprecedented for the board to deny the tribe the right to seek a dismissal before conducting the hearing on the merits,” Shore said… On seven occasions during the call, Torczon called the sale of the patents to the St. Regis tribe a “sham” transaction, arguing that the tribe didn’t purchase the patents but rather were paid to take them. Torczon drew parallels between the patent sale and racketeering cases in the context of lending fraud. “So facially this transaction is a sham.