Bonum Certa Men Certa

The Patent Trial and Appeal Board (PTAB) is More Legitimate Than Ever Before, More So After the 'Sovereign Immunity Scam' Reaches Its Likely Final Stop

Only SCOTUS can save these brutal 'scammers' now -- a prospect which is unlikely to materialise after Oil States (only months old)

Powwow dancer



Summary: It's the end of the road for the 'scammers' and abusers looking to exploit (misuse) sovereign immunity; we think they're more deserving of being disbarred, not being given another appeal opportunity or any more time in court

THE depressing EPO, where corrupt officials misuse diplomatic immunity, has become the direct opposite of the USPTO, where patent quality seems to be improving and immunity (tribal/sovereign) has been weakened by a series of cases at multiple levels (courts).



Those who want the gist of it can find the latest news coverage in mainstream news sites ("U.S. court rejects Allergan bid to shield patents through tribe deal," Reuters), legal sites ("Up In Smoke? Sovereign Immunity, IPRs, And Native American Tribes," Above the Law) and even some non-profits ("Is It Checkmate For Pharma's Epic Gaming Of Patents?" American Council on Science and Health) or pharama news sites ("Court rejects Allergan's tribal licensing strategy, striking another blow to its Restasis generics defense," FiercePharma). We would rather focus on more specialised sites and assess their reaction, having already written a few dozen articles on the subject.

"We would rather focus on more specialised sites and assess their reaction, having already written a few dozen articles on the subject."Professor Jason Rantanen wrote about it yesterday: "This dispute is clearly not at an end, and I suspect that the Tribe and Allergan will seek en banc review, if not head straight for a cert petition. Given the expedited briefing schedule, I expect this issue to continue to move quickly. At the same time, however, keep in mind that in the parallel infringement proceeding in the Eastern District of Texas, Judge Bryson (sitting by designation) found the Restasis Patents obvious following a bench trial. Allergan (now joined by the Tribe) appealed that determination. Oral argument is currently scheduled for September."

Bryson's ruling was covered here before. Several times in fact. Kevin E. Noonan, who has been covering the whole Saint Regis Mohawk 'scam' for about a year, is revisiting the subject in light of the latest development. For those who missed it, Saint Regis Mohawk participated in a 'scam' with Allergan and even the courts (CAFC Judges Dyk, Moore, and Reyna being the latest) confirm it repeatedly.The passage of tens of millions of dollars accomplished nothing for them (except very negative publicity for both).

Many judges have thus far been involved and all of them decided the same way.

Noonan wrote:

The Federal Circuit issued its opinion on Friday in St. Regis Mohawk Tribe v. Mylan Pharmaceuticals, affirming the decision by the Patent Trial and Appeal Board (PTAB) of the U.S. Patent and Trademark Office that denied the Tribe's motion to terminate Mylan's inter partes review (IPR) proceedings as being barred by tribal sovereign immunity.

The issue arose over IPR Nos. IPR2016-01127, IPR2016-01128, IPR2016-01129, IPR2016-01130, IPR2016-01131, and IPR2016-01132 (and parallel IPRs filed by Petitioners Teva Pharmaceuticals USA, Inc. and Akorn, Inc., which had been joined with Mylan's IPRs) instituted against U.S. Patent Nos. 8,685,930, 8,629,111, 8,642,556, 8,633,162, 8,648,048, and 9,248,191 respectively. After the PTAB instituted IPRs against these six patents owned by Allergan and directed to its Restasis€® product, Allergan assigned its rights in the patents to the Tribe in return for a license (see "Allergan Avails Itself of Sovereign Immunity"). The Tribe argued unsuccessfully before the Board that as rightful owner of the patents the Board lost jurisdiction based on tribal sovereign immunity (see "Mohawk Nation Exercises Sovereign Immunity in Inter Partes Review"). The Board held that, as an issue of first impression, the Tribe had not borne its burden of showing it was entitled to the requested relief, and that the nature of the license left all substantive patent rights with Allergan, and thus that the company could amply represent the Tribe's rights even in its absence (see "PTAB Denies St. Regis Mohawk Tribe's Motion to Terminate IPRs based on Sovereign Immunity").

[...]

Meanwhile, it can be expected that the Federal Circuit will lift the stay on the PTAB IPR proceedings that it entered while this appeal was pending (see "Federal Circuit Issues Stay in St. Regis Mohawk Tribe Sovereign Immunity Appeal"). And in due course the PTAB will hold oral hearings and issue its Final Written Decision, no doubt invalidating the claims and patents at issue.


Mind Richard Lloyd's positive slant (at the patent trolls' lobby) and loaded statement, as if they have "IPR sovereign immunity" which just needs "saving"...

"It involves a bunch of 'scammers' and bullies who sent me legal threats for merely 'daring' to cover it. Don't give these bullies the pleasure (and billing hours) of a Supreme Court challenge. Better yet, disbar them. They're SLAPPers who misuse not only sovereign immunity but also copyright law."He said that "Only SCOTUS can save tribal IPR sovereign immunity following CAFC decision last week" in his headline and the bit outside the paywall says this: "The [mis]use of tribal sovereign immunity to shield US patents from review at the Patent Trial and Appeal Board (PTAB) received what might be a mortal blow with the Federal Circuit's ruling last Friday affirming that patents originally owned by Allergan, but transferred to the Saint Regis Mohawk tribe in September last year, can be subject to inter partes review (IPR). Following the CAFC's decision attention will now shift to whether the tribe’s lawyers will ask the CAFC to hear the case en banc or petition the Supreme Court to take it. Under Chief Justice John Roberts, tribes have generally not fared well in disputes..."

Will the Supreme Court deal with it? We doubt it. Yesterday's "Supreme Court Update" by Dennis Crouch lists the latest cases:

Each summer, the Supreme Court takes a recess and patent cases begin to pile-up in the high-court’s docket. Only a handful of intellectual property petitions are granted certiorari each year, but almost all of the petitions raise interesting and important issues of law and policy.

The following is a comprehensive list of Patent cases pending before the Supreme Court. I have excluded a small handful that have (in my estimation) no shot at certiorari and also fail to raise interesting patent law issues.


After Oil States it's just hard to see the need or relevance or urgency associated with with such a 'case' (more like a scam). It's hardly even a controversial one because pretty much every judge and even every politician thinks the same way. Here is what Alex Moss wrote for the EFF yesterday:

The Federal Circuit has prevented a private company from using a Native American tribe’s rights to bar the Patent Office from reviewing its patents. The case involves a pharmaceutical company, Allergan, that paid the Saint Regis Mohawk Tribe to “own” its patents, and then assert sovereign immunity to avoid inter partes review (IPR). Congress created IPR proceedings to improve patent quality by giving third parties the opportunity to challenge patents at the Patent Office. Emphasizing the public interest in the nature of IPRs as proceedings before an administrative agency—the Patent Office—the appeals court found that tribal immunity could not be asserted to end these proceedings.

This case began when Allergan sued a number of generic pharmaceutical companies, including Mylan, for infringing its patents related to Restasis, a treatment for symptoms of chronic dry eye. Mylan responded by filing IPRs challenging the patents. Allergan responded in turn by “selling” these patents to the Saint Regis Mohawk Tribe (which received millions of dollars from Allergan as part of the transfer). After the patents were transferred, the tribe asserted sovereign immunity and asked the Patent Office to terminate the IPRs.

Generally, sovereign immunity refers to the concept that a sovereign entity (here, the Saint Regis Mohawk Tribe) can’t be subject to the jurisdiction of another sovereign (here, the U.S., in the form of the Patent Office) unless the first entity agrees. The deal with Allergan required the tribe to assert sovereign immunity in an attempt to end the Patent Office proceedings before the Restasis patents were revoked. Stated more bluntly, Allergan paid to use tribal sovereignty in order to block efforts to have its patents invalidated.

After administrative judges at the Patent Office denied the request to terminate the IPRs, the Saint Regis Mohawk Tribe appealed to the Federal Circuit. The appeal generated a lot of public interest and many amicus briefs were filed on both sides, including a brief [PDF] from the R-Street Institute and EFF. We explained that if Allergan’s tactic were allowed, it would undermine the IPR process and lead to many other companies using the same scheme to avoid review of their patents.


Consider it done and dusted. We find it hard to believe that yet another set of judges is needed to deal with such a trivial case. It involves a bunch of 'scammers' and bullies who sent me legal threats for merely 'daring' to cover it. Don't give these bullies the pleasure (and billing hours) of a Supreme Court challenge. Better yet, disbar them. They're SLAPPers who misuse not only sovereign immunity but also copyright law. They attempt to muzzle their critics so as to 'shape' the public debate.

Recent Techrights' Posts

Not Just Slow News But Also Late News (Julian Assange Landing in Thailand)
Why did AP take so long (nearly a week) to release these?
[Meme] Smart Alec Poettering
How many Microsofters can the Debian Project withstand?
Getting Rid of Microsoft Does Not Go Far Enough
Microsoft already has many problems. One day Microsoft won't exist anymore. But that does not guarantee users' freedom.
Alyssa Rosenzweig's LibrePlanet Talk About Freeing the Apple GPU
Alyssa Rosenzweig is the graphics witch behind the reverse-engineered drivers for the Apple GPU. She previously led Panfrost, the free drivers for Arm Mali GPUs powering devices like the Pinebook Pro. She graduated in 2023 with a Computer Science degree from the University of Toronto and now writes free software full-time.
Links 30/06/2024: LLMs Under Fire and Dictatorship of the Old
Links for the day
[Meme] Walking Outside the Guardrails of the Walled Gardens Built by Monopolies
So-called "advertiser-unfriendly" material was never a problem for Wikileaks
This War Crime Footage, Nothing Political Per Se, Is What They Made Julian Assange Plead Guilty To (War Criminals Not Convicted, Only Those Who Expose Them)
Wikileaks' Julian Assange: Exposing the US Military Crimes
20 Years Passed, Let's Go Even Faster Now
We are hoping to bring more original stories
 
In the First 6 Months of 2024 Thailand Moved to GNU/Linux, Not to Windows Vista 11
maybe users moved from Vista 10 and 11 to GNU/Linux, seeing where Microsoft was heading with forced hardware "upgrades"
Eko K. A. Owen, New Outreach and Communications Coordinator for the FSF
Nice to see many new additions to the FSF's team
Microsoft Has Slaves and Enablers, Not Partners
Obligatory meme too
Windows in Åland Islands: From 100% to Less Than Half
Åland Islands lost the sense of urgency to move to GNU/Linux
Tobias Platen Covered Freedom-To-Play Games in LibrePlanet 2024
Freedom-To-Play games using Taler
[Meme] Opening a 'Webapp' With 'Only' 4 GB of RAM
Until 2020 none of my PCs ever had more than 2 GB of RAM
Destination 'Five Percent'
We reckon GNU/Linux can break the 5% barrier some time by the end of this year, even without counting Chromebooks
A Crisis of Online Journalism
Almost a week ago a journalist was forced to plead guilty for an act of journalism
Germany One of Many Countries Where Microsoft's Bing Lost Market Share After All That LLM Nonsense (Bing Chat and Further Rebrands/Renames)
openai.com traffic plunged 60% last month
Microsoft’s Latest Antitrust Scrutiny
4 new stories
Microsoft Layoffs, Mass Plagiarism, and More
outrage included
GNU/Linux Climbed 0.25% This Month (in statCounter)
Around midday on Tuesday we'll start seeing preliminary data for July
Ilya Gulko Introduces Pollyanna
"Pollyanna is a web framework that makes it easy to create your own libre social space, such as a social network or blog."
'FSFE': Underage Labour, GAFAM Fronting, and Identity Theft to Undermine the FSF's Current Fundraiser
looking to raise funds at the same time as the FSF
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, June 29, 2024
IRC logs for Saturday, June 29, 2024
Links 29/06/2024: Astronauts at Risk, Ukraine Updates
Links for the day
Fedora and Red Hat Leftovers
mostly redhat.com
Microsoft is Now Googlebombing or Spamming 'Open Source' and 'Linux' to Promote Proprietary Surveillance, Azure
Notice the title and the image, what's being promoted etc.
Seychelles: GNU/Linux Doing OK
Seychelles cannot be considered poor
Gemini Protocol Isn't Even Remotely "Dead"
"Lupa knows of 505,000 (half a million!) working Gemini URLs at present, up from about 425,000 this time last year"
About 10 New Free Software Foundation (FSF) Members Per Day
The total changed from 46 to 47 while typing the article
Vista 11 Adoption Unusually Low in Germany and It's Going Down, Not Up
This is not happening only in Germany
Kevin Korte on Computers Being Allowed to Make Decisions Based on Cryptic Algorithms and Proprietary/Secret Data
It uses buzzwords where none are needed
[Meme] Garbage In, Garbage Out (linuxsecurity.com)
It is neither Linux nor security, just chatbot-generated slop
Microsoft-Invaded CISA Spreads Anti-Free Software FUD (as If Proprietary Software Has No Memory Safety Issues), Brittany Day Uses Chatbots to Amplify and Permutate the Microsoft FUD
linuxsecurity.com became an anti-Linux spam site
Microsoft Laying Off Staff in an Act of Retaliation and Union-Busting
retaliatory layoffs at Microsoft
Gemini Links 29/06/2024: Content Drowning in 'Goo' and LLM Slop
Links for the day
Windows Lost Almost 92% Market Share in Egypt
From over 99% to just over 7%
In Ecuador, GNU/Linux Adoption Surged From Under 1% to Over 4% in About 3 Years
Not even counting Chromebooks
LibrePlanet: Cultivating Backups (of Recordings)
an appeal to recover some of these talks
Microsoft/Windows Machines Are Turned Off (or Windows Deleted/Decommissioned) in Web Servers, as the "Market Share" Collapse Continues
Taking full history into account, this is a decrease of over 90% in some cases
Corwin Brust Hosting Freedom: A Behind-the-scenes Tour With the GNU Savannah Hackers
"the "smiling faces" behind it."
Android at 90% or More in Chad
Windows below 2%
David Wilson: Cultivating a Welcoming Free Software Community That Lasts
"a feeling of shared ownership for all users."
Julian Assange Might Continue Wikileaks, But Certainly Not Yet (Recovery Time Needed)
And probably at a symbolic capacity only
Bringing in 12 Santas and Taking 13 Out (Old Interview With Julian Assange)
Julian Assange's life inside the Ecuadorian embassy
Neil Plotnick on GNU/Linux in the High School Classroom
uploaded to the LibrePlanet instance of MediaGoblin
Asia Appears to be Fastest to Adopt GNU/Linux
the home of a considerable majority of the world's population
Alexandre Oliva's LibrePlanet 2024 Talk About "Software Enshittification"
in spite of technical difficulties encountered while recording
What They Used to Do With Mono They Now Do With Systemd (Lower and Deeper Down Than Userspace)
Now we have a project started primarily by Red Hat (and managed by Microsoft GitHub, which is proprietary) being managed by Microsoft and primarily serving Microsoft and IBM
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, June 28, 2024
IRC logs for Friday, June 28, 2024
Links 28/06/2024: Kangaroo Courts and Patents Spam, EFF Still Fighting for CPC's TikTok (a Digital Weapon)
Links for the day
Links 28/06/2024: Overton window and Polarization
Links for the day
[Meme] In 50 Years...
Microsoft's Vista 11 will take 50 years to be fully adopted
Only About 1 in 8 Russian Windows Users is Using Vista 11
it looks like over the past 12 months Vista 11 hardly grew and it remains very low at around 12% of Windows usage in Russia
Links 28/06/2024: More Attacks on the Press, More Censorship in Russia
Links for the day
Gemini Links 28/06/2024: Christmas Prematurely, Self-hosting
Links for the day
IBM: So Long, Suckers. Your Free OS is Now Proprietary. Pay IBM or Else.
almost exactly a year after turning RHEL into proprietary software
Vista 11 is Doomed and Despite Lack of Adoption Microsoft Already Speaks of Vapourware ("12")
"Microsoft has pulled a Windows 11 update after users reported boot loops and startup failures."
ChromeOS Reaches Highest Share in Years at the World's Most Populous Nation, Windows Now at All-Time Low of 13%
We're talking about India today
[Video] "It Is Incredible That Julian Assange Survives"
There was a positive and mutual relationship between Wikileaks and Dr Jill Stein
Never Assume That Because the Law Exists the Powerful Will Follow the Law
Who's going to hold them accountable now?
Nearly a Month Has Passed and Nobody at the Debian Project Even Attempted to Explain What Seems Like Back-dooring of Debian (and Hundreds of Distros That Are Debian-Derived)
I can cynically guess that only matters when a user with a Chinese name does it
[Video] Julian Assange Explains Wikileaks' Logistics
predating indefinite detention
IBM Was Never the "Good Guy", Just a Self-Serving and Opportunistic Money- and Power-Hungry Monopolist, Living Off of Taxpayers' Money (Government Contracts)
The Nazi Party of Germany was its second-biggest client at one point and now it's looking to profit from the work of slaves
"I Hated Working at IBM. They Were the Most Unfriendly People."
Don't forget what Watson the son did to a poor woman on a plane
State of the News (and Depletion of Journalism Online, Not Just Offline)
Newspapers are not coming back and the Web is not coming back either
GNU/Linux Consolidates in North America
Android rising a lot this year, too
[Meme] More Monopolies Granted While Patent Examiners Die (Overworking for Less Compensation)
Work more; Get less
Staff Union of the EPO (SUEPO) is Taking the New Pension Scheme (NPS) to an International Tribunal (ILOAT)
SUEPO wants more EPO staff to participate in collective action
Stella Assange and the Legal Team Speak to the Media a Day After WikiLeaks Founder Julian Assange Arrives in Australia
Published yesterday by a number of mainstream publishers
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, June 27, 2024
IRC logs for Thursday, June 27, 2024
RIP Daniel Bristot de Oliveira, Red Hat death
Reprinted with permission from Daniel Pocock