Bonum Certa Men Certa

The Mohawk-PTAB Fiasco Threatens the Tribe's Reputation More Than It Threatens PTAB

Since the patents are not even assigned to the Mohawk people, this whole "scam" accomplishes nothing

Suscol Intertribal Council
Photo credit: Sarah Stierch (CC BY 4.0)



Summary: In an effort to dodge scrutiny from the Patent Trial and Appeal Board (PTAB), Allergan Plc offloaded a lot of negative publicity onto the Mohawk people, owing primarily to the Mowhawk Tribe's general counsel, Dale White

THE Patent Trial & Appeal Board (PTAB) has been making many headlines recently. The patent microcosm is trying as hard as it can to kill it. It cannot kill the people inside the PTAB (whom it vainly refers to as a "death squad"), so it wants to kill the entire institution. It's appalling.



We were very sad to see the Mohawk people exploited, or virtually used as a sort of 'instrument' for killing PTAB. As some people have put it, the Mohawk tribe is now facilitating a "scam" (not our word). Don't expect the patent microcosm to admit this. In fact, in some comments that we saw over the past week, all criticisms of this ploy are being dismissed or played down as being just a substance-less cry of "scam". Far from it!

Earlier this week, in a site of the patent microcosm, Philippe J.C. Signore from Oblon wrote about this as a case for refreshing Constitutional Law recollection. Well, as patent radicalism is waning (the system has improved in recent years) they will try to crush the system. Here is what Signore wrote:

Article III also states that the judicial power of the U.S. is vested in the federal courts and judges. In its brief filed in August 2017, Oil States argued that IPR proceedings are unconstitutional because they are set up as adversarial judicial trials (as opposed to examination proceedings) of granted private property rights, and as such should be handled by Article III judges and not “administrative agency employees who are beholden to Executive Branch officials.” Oil States also argued that IPR trials resolve questions of novelty or obviousness, which “are precisely the same questions that English jurors resolved,” such that “they fall within the Seventh Amendment’s scope.”

The Eleventh Amendment of the Constitution has also made the patent headlines lately. This amendment bans lawsuits against individual states of the union, unless the immunity is waived. The immunity stems from the principle that states entered the federal system on the condition of keeping their sovereignty intact. In 1999, the Supreme Court interpreted the immunity of the Eleventh amendment as extending to state universities and agencies, recognized as arms of the state. As such, state universities cannot be sued for patent or trademark infringement (unless the immunity is waived or abrogated by Congress).

Earlier this year, in Covidien v. University of Florida, the PTAB refused to institute an IPR because it held that the patent owner, the University of Florida, should benefit from the immunity afforded to the States by the Eleventh Amendment. The PTAB reasoned that the “considerable resemblance” between IPR proceedings and civil litigation justified application of the sovereign immunity to the administrative proceeding. If this decision is affirmed, it would place state universities in the very enviable position of being able to sue for patent infringement in a federal court—without being subject to IPRs before the PTAB, and without being subject to infringement lawsuits.


Better change jobs if one relies on just suing lots of companies and trying to dodge legal challenges.

Three days ago we saw Susan Decker from the Wall Street media relaying the offensive analogy from a corrupt judge, who called PTAB a "death squad". She wrote about the Mohawk fiasco and cited an extremist "who founded a group called US Inventor Inc." (laughing stock of a tiny group). Why did Bloomberg decide to quote radicals like Paul Morinville? Or disgraced judges? Is that all that's left to discredit PTAB by?

Decker said that "Allergan Plc’s decision to pay a Native American tribe $15 million a year rather than let one of its blockbuster drugs be scrutinized by the U.S. Patent & Trademark Office is part of a backlash against an agency review panel that has been dubbed a “death squad.”"

This so-called 'backlash' is orchestrated by the patent maximalists. It's a made up controversy which the practicing industry has repeatedly refuted. Sites like Watchtroll and Patently-O worked very hard to scandalise PTAB and solicit briefs to that effect. So did Morinville, who burned papers in an unauthorised protest in front of the USPTO (like some Tea Party nut).

Managing IP, another key element of the patent microcosm, wrote about it several days ago (stating, in the headline, that this "could blow up the IPR system"):

If successful, Allergan’s eye-catching gambit of seeking to cancel PTAB proceedings by assigning patents to the Saint Regis Mohawk Tribe would be a blueprint for others to follow. But will the PTAB rule that sovereign immunity applies in this case?


Then came Bristows, the UPC propagandists and the friends of patent trolls (even in Europe), with a headline that says "rip off consumers" [sic] (means customers). These are the mischievous people who openly lobby for patent trolls (even promoting them in the UK) -- using words like "attack" to mean quality control (typical calls to weaken PTAB IPRs). It says that "according to this New York Times article, the Mowhawk Tribe's general counsel, Dale White, said it was a Dallas law firm called Shore Chan DePumpo that first approached the tribe with the proposal."

This highly dodgy entity was mentioned here before. To quote Bristows:

Critics have said that the move should fail because a company should not be able to shield its patents from review. The response, of course, being that they cannot completely shield their patents from any review - they will still be subject to federal court and the realm of Hatch-Waxman litigation (at least in this case). So the patents are, for now, not completely immune to the attack as stated by Allergan's press release (although a different deal and parties could take a different position which could make the sovereign immunity v federal court position a bit murkier).

In the meantime, what seems clear is that this move is another flag to Congress that the IPR regime needs to be re-examined. Senator Brown, however, stated that he would look into how Congress can "close loopholes that drug companies exploit to avoid competition". But perhaps a more holistic view as to all the issues in play is in order...


"The biggest problem with Allergan’s St Regis Mohawk deal is that the tribe may not own the patents," IAM explained. They just (mis)use it for immunity and herein lies the great controversy. The Mowhawk Tribe's general counsel, Dale White, got them into a scam. The tribe ought to fire him and 'burn' the patents (if at all possible). Any financial gain made through this ridiculous transaction is likely outweighed by the damage done to the tribe's reputation already. Is this what they want to become synonymous with? Because many people will know nothing about the tribe except this episode.

Recent Techrights' Posts

Attacks on Techrights Are Only Making Techrights Bigger and Even More Popular
A week ago they offered to settle with us
EPO Staff Can Go Listen to Richard Stallman Next Week in Munich (Technical University of Munich, Rudolf-Diesel Hörsaal (MW2001) on Campus Garching at 18:00)
"The talk is open to the public and attendance is free. Registration is not required."
At IBM, Relocation Means Layoffs (Downsizing)
Silent or 'invisible' layoffs?
Dystopian Trends in Technology Make Richard Stallman More Relevant Than Ever
It's good to see him attracting vast audiences
Richard Stallman (RMS) Announced His Talk Less Than 24 Hours Before It Took Place and Still Filled Up the Auditorium at Sapienza Università di Roma
Photos from yesterday evening [...] It looks like it was a very successful event
 
The DDoS Attacks by Microsoft's Scam Altman and Other Slop Charlatans and Frauds is Hurting the FSF, Delinking It From Copyleft Projects
This impacts a lot more than access to the licences
Microsoft Scanning Faces in Photos People Upload to Microsoft (Even Unconsciously), Slashdot Turns Report About It Into "Microsoft Sez" (Says)
Or "let's repeat the lies from a PR person/Microsoft's publicist"
[Teaser] Angel Aledo Lopez the Manipulator (Nepotism, Poll Rigging, and Other EPO Corruption)
We'll discuss this later today or tomorrow, based on internal EPO material
Epic Metaphor for End of IBM: "The IBM Demolition is Down to the Last Shards!"
Nothing lasts forever
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, October 14, 2025
IRC logs for Tuesday, October 14, 2025
Proprietary and DRM Prisons Spiralling Down the Sinkhole? Not Just Yet.
Let's hope that more people will flee to GNU/Linux
The European Patent Office (EPO), the Second-Largest Institution in Europe, is Cracking Down on Recreational Activities
Without AMICALE activities, and as staff already says it's pressured to work more for less, how can the EPO recruit bright people?
Transparency: FSFE financial reports exclude speaker fees and expenses
Reprinted with permission from Daniel Pocock
Many Developers Have Many Political Views, They'll Never Agree on Everything
It's an effort to divide and destroy, not build
Gemini Links 14/10/2025: An Opportunity to Consider GNU/Linux and Another Simple IRC Client
Links for the day
Slopwatch: UbuntuPIT, LinuxSecurity, Google News, and the Serial Slopper Brian Fagioli
Nothing of merit here, just more slop
Links 14/10/2025: Lack of Trust in Slop and "Retirement Challenges"
Links for the day
Rhonda D'Vine, Gerfried Fuchs, Pronouns & Debian pregnancy cluster
Reprinted with permission from Daniel Pocock
Central Staff Committee of the European Patent Office (EPO) Warns That EPO Management is Robbing or Manipulating Pension Funds Again
Faking "growth" is just about as bad as forgery
Probably a Lot Worse Than LLM Slop: GNOME Tying Itself to Divisive Politics, Even Where It's Clearly Not Relevant
Something has gone terribly wrong in GNOME
Links 14/10/2025: Microsoft OneDrive Scanning Faces in Photos (Without Asking First), "OpenAI Says It Will Move to Allow Smut"
Links for the day
They Generally Don't Like Scholars, as They're Less Compelled or Pressured to Repeat What Corporations and Oligarchs Say
People who loathe scholars have an agenda in mind that, unlike that of reasonable people, revolves around controlling people
Belated New Article About Last Thursday's Lecture by Richard Stallman in Helsinki, Finland
there are good reasons to pay with cash, not limited to privacy
Attacking Richard Stallman Has Become 'Career Suicide'
If you're going to viciously attack somebody, make sure your arguments are rock-solid
Microsoft's Failing XBox Business Has Turned Games Into Funerals
How does it feel to depend on Microsoft?
Yesterday's "Distinguished Lecture" by Richard Stallman Possibly Attended by Close to 1,000 People
The capacity of the place is about 900
Slop Poisons Everything
Imagine wanting to find what Torvalds has just said or what has just been released
Taking Software Freedom 'Mainstream'
interest in Software Freedom must have grown
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, October 13, 2025
IRC logs for Monday, October 13, 2025
Gemini Links 14/10/2025: Ada Lovelace Day, Sony CLIE PEG-TG50 Review, Why to Avoid Network Solutions
Links for the day
The EPO's War on Techrights Was a Massive Mistake
The EPO started the SLAPPs after we had published a few hundreds of articles; we've since then published close to 6,000 because the attacks on us emboldened insiders to help us
General-Purpose Computers to Become Growing Area of Coverage
Without them, we have little left for controlling our lives
"They missed a great opportunity to shut up." -Jacques Chirac
Brett Wilson LLP has been trying to cheat the legal system many times
Harassment evidence: Switzerland, overcrowded fitness and yoga centers, incompetence and racism in accident response
Reprinted with permission from Daniel Pocock
Vincent Danjean & Debian NXIVM collateral, blackmail risks
Reprinted with permission from Daniel Pocock
In Sweden This Past Friday Richard Stallman Explained Why Copyleft is Important
And he didn't have to 'bash' BSDs, either
IBM Layoffs Due to a Lack of Money and Company Debt Rising by Almost 10 Billion Dollars in 6 Months
IBM didn't buy Red Hat for any ideological reasons; it was a fast "cash grab" for revenue
Forbes Already Stopped Being a News Sites. Now It's a Spam and Propaganda Platform for "Paying Partners" (Companies).
news from Forbes became very scarce
Is the Second-Largest Institution in Europe (EPO) Gradually Becoming More Like a Sweatshop?
Underpaid, unqualified, inexperienced and incompatible people are already recruited to replace veteran examiners
The Register MS Has No FOSS Coverage Anymore
The Editor in Chief is like a Microsoft plant
Links 13/10/2025: "Toasty Subwoofer" and WiFi Speakers "Are About To Go Dumb"
Links for the day
Gemini Links 13/10/2025: iNaturalist and Tove Jansson’s Moominpappa at Sea
Links for the day
Microsoft Does Not Deny That Large Retailers Like Walmart, Costco and Target Are Giving Up on XBox (and Not Stocking It)
No doubt XBox is in trouble and rumours suggest that more mass layoffs are imminent
We'll Encourage Richard Stallman to Talk About Software Patents at the EPO Next Week When He Visits Munich (EPO Headquarters)
Go listen to Richard Stahlmann
Investigative Journalism Protects Society From Corruption, Crimes Against Women, Assaults on Civil Society
"what is the point of men doing military practice to defend a system that is so rotten?"
Swiss pimp usurping reputation of legendary Tissot boss Francois Thiébaud from France (BaselWorld, SWATCH Group SA)
Reprinted with permission from Daniel Pocock
Paris 'Love Nest' & Debian Outreachy: from Lycée Lakanal to ENS Cachan, Cr@ns, nepotism
Reprinted with permission from Daniel Pocock
Richard Stallman to Give Public Talk in 3 Hours, Then in the Technical University of Munich (Germany) Next Week
Richard Stallman at TUM on 21.10.2025 18:00, MW2001
Arnaud Parreaux lost case defending rogue employer
Reprinted with permission from Daniel Pocock
Mathieu Elias Parreaux declared bankrupt in Switzerland
Reprinted with permission from Daniel Pocock
Breakdown of the Rule of Law and Patent Law in the European Union (EU)
The EPO cannot recruit suitably qualified patent examiners this way, let alone retain them
Gemini Links 13/10/2025: Good Films, Wizard of Earthsea, Upgrading the Steam Controller's Stick
Links for the day
Leaks and Whistleblowers: Our Plan for Today
Society simply cannot advance when too many people self-censor
It's Not Justice When One Side Denies the Other Side the Ability to Even Speak
At this stage, Brett Wilson LLP is in my humble opinion acting in contempt of the Court
Links 13/10/2025: Australian Catholic University Uses Slop to Libel Students, Canada Threatens to Kill Beluga Whales
Links for the day
How Not to Silence Tux Machines (It'll Only Backfire, Badly)
defending Microsoft while attacking this site
Slopwatch: UbuntuPIT and Google News
It seems abundantly clear that Google News and Google in general participates in the slop epidemic
Vincent Danjean (not INTERPOL), Claire Bardel & Debian pregnancy cluster
Reprinted with permission from Daniel Pocock
Christmas lynchings: Martin Krafft (madduck), Penny Leach (mjollnir) & Debian pregnancy cluster
Reprinted with permission from Daniel Pocock
Gemini Links 13/10/2025: Birthdays and "Committee Unable to Contact Nobel Prize Winner"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, October 12, 2025
IRC logs for Sunday, October 12, 2025