sovereign immunity PTAB

Federal Circuit Denies Tribal Sovereign Immunity from PTAB Proceedings

Last Friday, the Federal Circuit affirmed the Patent Trial & Appeal Board’s (PTAB) denial of tribal sovereign immunity as a patent owner defense to an AIA trial challenge. The decision tracks my November prediction that the Court would follow its reasoning in Ultratec, Inc. v. Captioncall, LLC, 2017, (Fed. Cir. Aug. 28, 2017), which explained that PTAB proceedings were not “trials” in an Article III sense. You can find Friday’s decision in St. Regis Mohawk Tribe v Mylan Pharm., Inc. (here)

The Board noted that the question of state sovereign immunity was left for another day, but was it really?
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