Court Rules against Dressing up as an Indian

At least in so far as it applies to evading common sense patent review:

In a unanimous decision, an appellate court has resoundingly rejected the legal claim that sovereign immunity, as argued by a Native American tribe, can act as a shield for a patent review process.

On July 20, the United States Court of Appeals for the Federal Circuit found in a 3-0 decision that the inter partes review (IPR) process is closer to an "agency enforcement action"—like a complaint brought by the Federal Trade Commission or the Federal Communications Commission—than a regular lawsuit.

IPR is a process that allows anyone to challenge a patent’s validity at the United States Patent and Trademark Office—it was used famously in 2017 to reject the "podcasting patent."

"This win is a victory in our ongoing efforts to stop patent abuses by brand companies and to help drive access to more affordable medicine," Mylan CEO Heather Bresch said in a statement on July 20.

"Today's ruling reaffirms that Allergan's attempt to leverage the Saint Regis Mohawk Tribe for patent protection represents another inappropriate tactic to delay the availability of generic medicines for patients who need them."
This case, Saint Regis Mohawk Tribe, Allergan Inc. v. Mylan Pharmaceuticals et al, really began in September 2015. That was when Allergan, a pharma company, sued rival Mylan, claiming that Mylan’s generics infringed on Allergan’s dry eye treatment known as Restasis.

………

By 2016, Mylan initiated the IPR. But Allergan, in an attempt to stave it off, struck a strange deal, transferring ownership of the six Restasis-related patents to the Saint Regis Mohawk Tribe, based in Upstate New York, near the Canadian border.

As part of that deal, Allergan paid $13.75 million to the tribe, with a promise of $15 million in annual payments—if the patents were upheld, that is. (According to The New Yorker, Allergan stood to make $1 billion annually for its monopoly product.)

………

The Mohawk Tribe attempted to end the IPR, citing sovereign immunity, which was denied. The tribe struck at least one other similar deal with a firm known as SRC Labs, which sued Amazon and Microsoft.

Due to the July 20 ruling, Mylan's IPR process will now go forward.

The inter partes review (IPR) process is an administrative review of patents that is faster, cheaper, and far less amenable to lame-ass patents than the federal courts.  (Particularly those federal courts in the Eastern District of Texas.)

This is yet another blow against the business of patent trolling.