New Frontiers for Tribal Immunity: Patents, Pharmaceuticals, and the PTAB

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The courts and Congress have long acknowledged the sovereign status of Native American tribes.  Tribes, like states and related instrumentalities such as public universities, may invoke sovereign immunity to avoid being hauled into federal court and other legal proceedings.  A new and unlikely twist brings tribal immunity to the most unlikely of forums for the latest battle, the Patent Trial and Appeal Board.  This teleforum will explore the growing and hotly contested trend of Native American tribes as patent owners and debate the arguments for and against tribal immunity. 

In 2017, Allergan assigned a portfolio of patents for it popular Restasis eye drops to the St. Regis Mohawk.  At the time, the patents were the subject of district court litigation Allergan brought against several generic drug companies that had filed Abbreviated New Drug Applications.  At the same time, the ANDA filers petitioned the PTAB to revoke Allergan’s patents.  After trial but before final judgment, Allergan assigned its patents to the Mohawk tribe.  The tribe moved to terminate the Inter Partes Review (IPR) proceedings at the PTAB.   What has followed has been months of briefing that has drawn extraordinary attention, including numerous amicus briefs, to the PTAB.   


Prof. Gregory Ablavsky, Stanford Law School

Mr. Aaron Cooper, Vice President, Global Policy, BSA | The Software Alliance

Mr. Michael Shore, Partner, Shore Chan Depumpo LLC

Moderator: Mr. Brian Pandya, Partner, Wiley Rein LLP


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