Today, in Saint Regis Mohawk Tribe v. Mylan Pharmaceuticals, the Federal CircuitSee CAFC held that tribal sovereign immunity does not provide a right of immunity in inter partes reviews (IPRIntellectual Property Rights. Usually associated with formal legal rights such as patent, trademark, and copyright. Intellectual property is a broader term that encompasses knowledge, information, and data considered proprietary whether or not it is formally protected.).
In an opinion by Judge Moore, writing for herself and Judges Dyk and Reyna, the Federal CircuitSee CAFC focused on the PTOPatent and Trademark Office, informally used interchangeably with USPTO. Director’s ability to decide whether or not to proceed with an IPRIntellectual Property Rights. Usually associated with formal legal rights such as patent, trademark, and copyright. Intellectual property is a broader term that encompasses knowledge, information, and data considered proprietary whether or not it is formally protected., a decision which ensures that “if IPRIntellectual Property Rights. Usually associated with formal legal rights such as patent, trademark, and copyright. Intellectual property is a broader term that encompasses knowledge, information, and data considered proprietary whether or not it is formally protected. proceeds on patents owned by a tribe, it is because a politically accountable, federal official has authorized the institution of that proceeding.” This aspect of IPRIntellectual Property Rights. Usually associated with formal legal rights such as patent, trademark, and copyright. Intellectual property is a broader term that encompasses knowledge, information, and data considered proprietary whether or not it is formally protected. is sufficient to treat IPRIntellectual Property Rights. Usually associated with formal legal rights such as patent, trademark, and copyright. Intellectual property is a broader term that encompasses knowledge, information, and data considered proprietary whether or not it is formally protected. as a proceeding “in which an agency chooses whether to institute a proceeding on information supplied by a private party,” exactly the type of proceeding which the Supreme Court has previously held would not be subject to state sovereign immunity, and by extension to tribal sovereign immunity. (CCIA joined an amicus brief suggesting the Federal CircuitSee CAFC deny tribal immunity on this ground, among others.)
The panel’s opinion does not decide the issue of state sovereign immunity, but strongly suggests that a similar determination will be reached when the issue is appealed.
While the panel’s opinion is clear and well-supported by the case law, a petition for certiorari would not be surprising, especially given the Court’s recent jurisprudence with respect to tribal immunity.
