Posts Tagged: "Mohawk"

PACED Act has nothing to do with drug prices, discriminates against Native Americans

The bill has nothing to do with drugs or drug prices, how how much Missourians desire cheaper generics. The PACED Act is discriminatory, has nothing to do with lowering drug prices, and doesn’t change the fact that to date no Indian Tribe has ever asserted sovereign immunity in a patent dispute in federal court… Ironically, if the PTAB and PTAB process were seen as fair and even-handed, there would be no incentive for any company to transfer its patents to sovereign tribes or State universities in order to escape the clutches of PTAB jurisdiction. Simply stated, the problem is IPRs, not Native American Tribes or sovereign immunity.

Mohawk Tribe Ready to Battle over Ex Parte Communications between PTAB Judges

Attorneys for the Mohawk tribe have notified the USPTO that ex parte communications between an APJ assigned to the IPRs and an APJ not assigned to the IPRs cannot possibly fall within the deliberative privilege of (b)(5), as it is commonly referred to in FOIA matters… Shore concluded his e-mail to the USPTO putting the Office on notice of impending litigation, reminding the USPTO of its obligation to retain all information and documents in anticipation of a FOIA lawsuit that would seek to compel release of documents in non-redacted form… In reviewing the March 9, 2018 document release there are several other e-mail communications that raise the specter of improper ex parte communications in violation of the APA, both relating to the Mohawk RESTASIS IPRs, as well as the IPRs where an expanded panel of the PTAB refused to recognize a sovereign immunity defense made by the State of Minnesota.

PTAB Denies St. Regis Mohawk Assertion of Sovereign Immunity

The Patent Trial and Appeal Board (PTAB) of the U.S. Patent and Trademark Office denied the Motion to Dismiss filed by the Saint Regis Mohawk Tribe. The Tribe asserted sovereign immunity and requested the IPRs be dismissed. The PTAB denies the request finding an IPR to not be an exercise of power over the Tribe… And therein lies the problem the PTAB faces. The Administrative Patent Judges routinely demonstrate an acute lack of understanding relative to very basic legal matters.

IP and Sovereign Immunity: Why You Can’t Always Sue for IP Infringement

The overlap between sovereign immunity and IP issues is not something that comes up all of the time. However, when it does, the impact of the immunity can be significant. The law for certain matters, such as lawsuits in Federal court, is fairly well resolved. However, its application when new procedures are made available, such as for IPRs which were established in 2012, has provided new challenges and opportunities… So can the Federal or State government be sued for infringement under Federal patent, trademark, or copyright law? The answer often depends on the particular facts and specific legal issues of a dispute. That said, in most cases the answer is Yes for the U.S. Government and No for states and Tribal Nations, unless they have taken a specific action to waive immunity for that matter. A brief summary follows.

If it Looks Like a Kangaroo, Hops Like a Kangaroo…

What’s abundantly clear – and disastrous for both the patent system and the public – is that the PTAB’s Kafkaesque rules for complaining about anything outside of what an expert stated in a submitted declaration, including allegations of judicial misconduct, is undermining the public’s already marginal confidence in the entire IPR process. Even Franz Kafka himself would be bewildered by a process which requires one to seek permission to complain – from the very body about whom a litigant is complaining.