Government Brief Faults Tribal Immunity Logic

On June 4th, the Federal Circuit will hear arguments in Saint Regis Mohawk Tribe v. Mylan Pharmaceuticals Inc.  As a reminder this case will explore whether principles of sovereign immunity prevent the Patent Trial & Appeal Board (PTAB) from conducting an Inter Partes Review (IPR) of a patent owned by a Native American tribe.

In advance of the upcoming hearing, the U.S. Dept. of Justice has filed its amicus brief supporting the agency’s decision to deny immunity.  The government brief explains that “[n]o principle of sovereign immunity entitles an Indian tribe to withhold a public franchise from reconsideration by the superior sovereign that granted it.”
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Federal Statutes Applicable to Tribes Absent Expression to the Contrary

In addition to the state sovereign immunity dispute now headed to the Federal Circuit, you might recall that the Patent Trial & Appeal Board (PTAB) was also considering the related question of whether sovereign immunity applies to Board proceedings involving Native American tribes. Last Friday, the Board decided that tribal immunity does not apply to USPTO proceedings in Mylan v. Saint Regis Mohawk Tribe.
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