Babaamaajimowinan (Telling of news in different places)

International report - Tribal sovereign immunity does not apply to PTAB proceedings

On February 23 2018 a panel of three administrative patent judges at the Patent Trial and Appeal Board (PTAB) unanimously agreed that tribal sovereign immunity does not apply to PTAB proceedings in Mylan v Saint Regis Mohawk Tribe. Although likely to be applauded by Congress and the general public alike as a common-sense ruling, aspects of this decision may reverberate through the patent licensing community for years to come.

The PTAB has ruled in a series of decisions that public universities enjoy sovereign immunity to inter partes review proceedings by way of the Eleventh Amendment (see NeoChord, Inc v University of Maryland, Baltimore (IPR2016-00208, PTAB May 23 2017); Covidien LP v University of Florida Research Found Inc (IPR2016-01274, PTAB January 25 2017); and Reactive Surfaces Ltd, LLP v Toyota Motor Corporation (IPR2016-01914, PTAB July 13 2017).


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