U.S. Senator McCaskill has introduced a Bill that would
remove sovereign immunity as a defense against Inter Partes Review of patents
for Indian Tribes. The Bill is
refreshingly short. It states:
A BILL
To abrogate the
sovereign immunity of Indian tribes as a defense in inter partes review of
patents.
Be it enacted
by the Senate and House of Representatives of the United States of America in
Congress assembled,
SECTION 1. Abrogation of tribal immunity in
certain patent claims.
(a) Definition.—In
this section, the term “Indian tribe” has the meaning given the term in section
4 of the Indian Gaming Regulatory Act (25
U.S.C. 2703).
(b) Abrogation of
immunity for purposes of inter partes review.—Notwithstanding any other
provision of law, an Indian tribe may not assert sovereign immunity as a
defense in a review that is conducted under chapter
31 of title 35, United States Code.
As previously discussed, the Bill is directed at Allergen’s recent attempt to use sovereign
immunity of Indian Tribes to insulate patents from Inter Partes Review at the
PTO by transferring its patents to the tribe in exchange for cash. Notably, Judge Bryson (of the Federal Circuit), sitting at the trial court level, recently asked Allergen to
demonstrate that its transfer is not a “sham." Judge Bryson further found the Allergen patents to be obvious.
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