Supreme Court Refuses to Revive Tribe’s Sovereign Immunity Patent-Shielding Strategy
The US Supreme Court has declined to grant certiorari in Saint Regis Mohawk Tribe v. Mylan Pharmaceuticals (2018-0899), ending a controversial patent-shielding strategy first used in late 2017 by a Native American tribe and its counsel. Under that strategy, the Saint Regis Mohawk Tribe acquired certain patents from pharmaceutical company Allergan and NPE SRC Labs, LLC, hoping to shield those assets from inter partes review (IPR) using the tribe’s sovereign immunity. However, in February and July 2018, the Patent Trial and Appeal Board (PTAB) and Federal Circuit each ruled that the tribe could not assert its immunity against IPR, although they each reached that conclusion on markedly different grounds from one another.
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