Indian Country 52 #42 – Renting Sovereign Immunity
“In September, we learned that the pharma giant Allergan had sold key patents to the St Regis Mohawk band in upstate New York, in a bid to avoid a streamlined patent-challenge process called inter partes review (IPR).
American indigenous tribes are sovereign nations and under the doctrine of “sovereign immunity” they can only be sued in US federal courts if they agree to subject themselves to the court’s jurisdiction. Allergan was embroiled in a patent dispute over an expired eye-medication that its rivals wanted to manufacture as a generic. Though Allergan believed it would prevail in the suit, it feared that it would then have to fight an inter partes review, and it believed that the St Regis Mohawks could avoid the process by claiming sovereign immunity.
Later in the month, we learned that other patent trolls had sold key patents to North Dakota’s Three Affiliated Tribes in order to sue Apple over patent violation, forcing Apple into the most expensive form of litigation by preventing Apple from seeking inter partes review of the troll’s patents.”
– BoingBoing, Troubles loom for patent trolls who rent sovereign immunity from Native American tribes.
“Before issuing the ruling on the Restasis patents, Bryson insisted that the parties discuss the issue of whether or not Allergan should be allowed to join the St. Regis Mohawk Tribe as a plaintiff to the case, “or whether the assignment of the patents to the Tribe should be disregarded as a sham.”
Earlier today, Bryson decided that the St. Regis Mohawk Tribe should be joined to the case. But he didn’t add the tribe because he thought the deal was valid—rather, he did it as an insurance policy to make sure that his decision to invalidate the patents couldn’t be challenged on the grounds that the wrong parties were named.
But Judge Bryson’s opinion (PDF) on the matter makes clear that he does not endorse or validate the deal to essentially purchase sovereign immunity from the St. Regis Tribe.
“The court has serious concerns about the legitimacy of the tactic that Allergan and the Tribe have employed,” Bryson writes. In his view, Allergan has paid the Tribe to “rent” its sovereign immunity at the US Patent Office.”
– Ars Technica, Judge throws out Allergan patent, slams company’s Native American deal.
Download the 18″x24″ poster (.pdf), Indian Country 52 #42 – Renting Sovereign Immunity.
Indian Country 52
Indian Country 52 is a weekly project by David Bernie that uses the medium of posters that promote issues and stories in Indian Country. Follow the series: Indian Country 52
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