Bonum Certa Men Certa

Why the Mohawk Tribe Should Fire Its Lawyers and Dump the Patents Which Now Tarnish Its Name

The quick buck isn't worth the damage done to the Mohawks' reputation

Mohawk



Summary: In order to dodge the Patent Trial and Appeal Board (PTAB) with its Inter Partes Reviews (IPRs), the Mohawk tribe is being exploited -- very much in direct detriment to its reputation and status

LAST week we wrote about the Mohawk people being used by vicious corporations that only need the Mohawk people because of corporate greed. We were actually very surprised that the Mohawk people had fallen for it (or rather their lawyers had plotted this). We last wrote about that six days ago.



Since then, much has been said about the subject. We certainly hope that the Mohawks will rethink the whole thing. Published by Mike Masnick on Wednesday was this article calling the whole thing a "scam" (in the headline). The Mohawk tribe ought to take this as a sign and fire the dumb (if not corruptible) lawyer/s. The tribe should then toss out these patents, thereby signaling to anyone else who thinks about such a scam that it will end up badly. To quote Masnick:

We've written a bunch over the past few years about the so-called Inter Partes Review (IPR) process at the US Patent Office. In short, this is a process that was implemented in the patent reform bill back in 2010 allowing people and companies to ask a special "review board" -- the Patent Trial and Appeal Board (PTAB) -- at the Patent Office to review a patent to determine if it was valid. This was necessary because so many absolutely terrible patents were being granted, and then being used to shake down tons of companies and hold entire industries hostage. So, rather than fix the patent review process, Congress created an interesting work-around: at least make it easier for the Patent Office to go back and check to see if it got it right the first time.

Last year, part of this process was challenged at the Supreme Court and upheld as valid. However, the whole IPR is still very much under attack. There's another big Supreme Court case on the docket right now which argues that IPR is unconstitutional (the short argument is that you can already challenge patents in court, and by taking them to an administrative board, it creates an unconstitutional taking of property without a jury). There are also some attempts at killing the IPR in Congress.


Joe Mullin, a trolls expert, hasn't missed this news either. Several days ago he said that a "[d]rug company hands patents off to Native American tribe to avoid challenge" (PTAB). We reckon that the Mohawk tribe isn't at fault here. It just doesn't know it has a lawyer who exploits them and shames them in the process. Some people have rightly pointed out that this scam might have been enabled unintentionally (without the Mohawks intending to do harm). To quote Mullin:

A drug company has found a novel way to avoid challenges to some of its most prized patents: handing them off to a Native American tribe for safe-keeping.

On Friday, Allergan disclosed that it gave six patents covering its top-selling dry eye drug Restasis to the St. Regis Mohawk Tribe in Northern New York. The deal will provide the tribe with $13.75 million immediately and an annual royalty of $15 million as long as the patents are valid. The new deal was soon reported in both The New York Times and The Wall Street Journal.

Allergan made the unprecedented move because it will prevent any meaningful challenge to the company's patents at the Patent Trial and Appeal Board, or PTAB. Challenging patents at the PTAB in a process called "inter partes review" (IPR) was authorized by the America Invents Act of 2011, and the IPR process has significantly changed the patent landscape since then. While invalidating a patent in district court typically costs millions of dollars, invalidating a patent via IPR can happen for the relative bargain of a few hundred thousand dollars.


A very detailed analysis from CCIA's Josh Landau was published to explain why the US legal system is disgraced when patents can enjoy immunity by having dodgy entities exploit Natives. To quote some key bits:

What do Seymour Cray’s high-performance computing research company SRC Labs and drug manufacturer Allergan have in common? Both SRC Labs and Allergan sold patents to the Saint Regis Mohawk Tribe, then licensed them back from the tribe, in order to use tribal sovereign immunity to prevent challenges to their patents as invalid.

[...]

Sovereign immunity is not a topic that appears on many Patent Law syllabi. But in the past year, it’s become a more pressing issue when it comes to patents. First, state universities used it to avoid challenges to their own patents. And now, sovereign immunity is being sold to completely unrelated companies.

The University of Florida Research Foundation (UFRF) is a non-profit foundation established by the University in order to “to promote, encourage and provide assistance to the research activities of the University faculty, staff and students.” As part of this, they patent inventions by UF faculty and staff, and license those inventions.

Covidien (a medical device manufacturer) had a patent license agreement with UFRF. UFRF sued Covidien, and in response Covidien defended themselves by filing inter partes reviews (IPRs) against the UFRF patents. Back in January, UFRF claimed that, as a state entity, they were immune from IPR under Eleventh Amendment sovereign immunity. The Patent Trial and Appeal Board agreed and dismissed the IPR on Eleventh Amendment grounds.

Later in the year, a similar situation occurred, this time featuring the University of Maryland and NeoChord, another medical company. Maryland had given an exclusive license to several of their patents to Harpoon Medical, which sued NeoChord. NeoChord filed an IPR on the patents, and again, the PTAB dismissed the IPR on Eleventh Amendment grounds.

There are a few other instances of Eleventh Amendment immunity claims that may come up, including one by the University of Minnesota against Ericsson.

[...]

The tribe’s FAQ on this program is interesting. I don’t know if they got the wrong impression from their lawyers, just misunderstood, or what, but they claim that by doing this, they can help “protect[] from patent trolls.”

Bluntly put, preventing patents from being IPRed does not protect anyone from patent trolls—it protects patent trolls from IPRs.

The tribe also claims that IPR is “very unfair” and allows patent trolls to void valid patents. (Patent trolls do not generally try to invalidate patents, because they usually don’t have any products to be sued on.) The tribe also claims that they’ll file to have their patents reviewed in federal court, which, again, does not happen.

If IPR is unfair, why does the Federal Circuit affirm three quarters of appealed PTAB decisions? The PTAB is getting decisions right, there’s just a lot of invalid patents out there to be challenged.


On the other side of the fence, as usual, there are PTAB-bashing blogs like Patently-O/Crouch, who uses any opportunity to undermine PTAB. Silly US immunity from PTAB (e.g. for universities) means that dodgy companies now hide behind Natives. We have already explained why universities should enjoy no such immunity. Here is what Crouch wrote about it some days ago: (the typical PTAB bashing when he's not carrying out automated assessment of words in patents)

US Law generally holds that Indian Tribes are “Sovereign Powers” that “possess immunity from suit,” although only “to the extent that Congress has not abrogated that immunity and the tribe has not clearly waived its immunity.” Breakthrough Management Group, Inc. v. Chukchansi Gold Casino and Resort 629 F.3d 1173 (10th Cir. 2010), cert denied. As the Supreme Court wrote, “without congressional authorization,” the “Indian Nations are exempt from suit.” United States v. United States Fidelity & Guaranty Co., 309 U.S., at 512 (1940).


The Mohawk tribe’s lawyer is a either fooled or a fooling actor. Whatever it is, the Mohawk need to get out of this PR debacle. They are only supported by sites that favour patent trolls. The Mohawk tribe’s lawyer was apparently told that this stops patent trolls, but the very opposite will be true. It actually does the very opposite, especially if other patent holders follow the example/tactics of Allergan/the Mohawks. Here is how IAM put it:

The recent news that pharma giant Allergan and tech company SRC have licensed patents to a Native American tribe in an attempt to protect the patents from inter partes review (IPR) has once again catapulted the controversial post-issuance review process into the wider business press. With the Supreme Court due to hear Oil States, a case concerning the constitutionality of IPRs, in its next term, the Patent Trial and Appeal Board (PTAB) is in the spotlight like never before.

Since the move by the pharma giant was announced early last week there has been an avalanche of press and blog coverage (you can read what this blog had to say here and another piece on Indian tribes and sovereign immunity, which is particularly worth reading, here). The Saint Regis Mohawk Tribe was clearly unimpressed by some of the ensuing coverage and so yesterday put out a statement in what it described as a clarification. Clearly keen to play to the patent gallery the statement ended with: “A strong patent system is in everyone’s best interest, which is why patent protection is one of our original constitutional rights.”


IAM says that the "Patent Trial and Appeal Board (PTAB) is in the spotlight like never before" while it actively participates in PTAB bashing, as we shall show in our next post.

Sadly, corporate media too plays a role in misinformation. Consider this coverage from the New York Times 9 days ago. The headline in its own right is wrong. That's not "how to protect a drug" but how to shield bogus patents from quality control (PTAB).

Here is what the Times said:

The drugmaker Allergan announced Friday that it had transferred its patents on a best-selling eye drug to the Saint Regis Mohawk Tribe in upstate New York — an unusual gambit to protect the drug from a patent dispute.

Under the deal, which involves the dry-eye drug Restasis, Allergan will pay the tribe $13.75 million. In exchange, the tribe will claim sovereign immunity as grounds to dismiss a patent challenge through a unit of the United States Patent and Trademark Office. The tribe will lease the patents back to Allergan, and will receive $15 million in annual royalties as long as the patents remain valid.


What kind of a scam is this and who seduced the Mohawks into this PR disaster? Whoever or whatever it is, they need to get out of it in order to (maybe, if it's not too late) undo the damage. Media generally regards this as evidence of Mohawks being unintelligent, or even worse: mischievous and greedy.

Recent Techrights' Posts

XBox is Rapidly Turned Into a Slopfarm by Microsoft
Slop isn't about efficiency and saving money
Reboots Should Never be Necessary
"BUT WHAT ABOUT SECURITY!!"
Microsoft's Halloween Documents and systemd, Wayland, Etc.
Maybe one day Wayland will be widespread. Or maybe not.
Changing One's Name Won't Change One's Past
People who have earned a bad reputation are not magically "entitled" to reset
People Who Assault Women Are Not Victims of "Distress"
It seems like an American tradition. In a country with almost 50 presidents, not even one was a female.
Adoption of Gemini Protocol Still Growing
Gemini Protocol is being obscured by the media - it doesn't help that Google 'hijacked' the word "Gemini" - but people still manage to find out about it, download a client, and use it
Brett Wilson LLP "Takes it Personal" (Character Assassination, Not Professionalism). Everybody Can See That.
On behalf of violent men
 
Coming Soon: Another OSI Scandal, This One Implicating Molly de Blanc
OSI has been fairly quiet lately
Outreachy & Debian pregnancy cluster, Meike Reichle evidence
Reprinted with permission from Daniel Pocock
Again, "Lunduke is Actually Sending His Audience to Attack People"
Microsoft Lunduke is not trying to "protect" Linux
One of the Most Hilarious Things About the Microsoft SLAPPs
It's so ridiculous
Financial Support for the Free Software Foundation or the GNU Project
The FSF has extended until Friday its fund-raising campaign
Illegally Hiding (or Demanding Secrecy Around) Illegal Requests or Attempts at Extortion
unlawful communications like threats
Gemini Links 14/07/2025: BOFH Archive, Updating Old Palm PDAS, and Nginx vs Slop Bots
Links for the day
Ubuntu is Becoming GAFAM-Like
What does that say about Canonical and Ubuntu?
Slopfarms Which Take Real Articles About GNU/Linux and Turn Them Into Copycats Which Are False
Even before the LLM hype those were quite common
The Firm That Picks on Techrights is Accustomed to Working With Criminals
Techrights never did anything illegal. So why is it being picked on by people who work with criminals?
Microsoft Said the Mass Layoffs Were for "Investment" in "AI", But It's Also Laying Off the "AI" and "Copilot" Staff
Months ago we showed many so-called "AI" people were getting the boot and this time it's the same
DryDeadFish is Dead, Long Live DryDeadFish
We kept checking, hoping it can recover from some temporary technical issue
For Quite Some Time Already Microsoft Attracts Crackpots, Scams, and More
Occasionally we talk about the situation at IBM as there are many parallels
Links 14/07/2025: Chatbots Broken Again, McHire LLM Shows Limits of the Hype
Links for the day
Slashdot Media Turned Linux Journal Into a Slopfarm and Now Slashdot Actively Promotes Anti-Linux Slopfarms
Yes, "no-nonsense" apparently means actual nonsense
Links 14/07/2025: Arresting Photographers, Threats to Revoke US Citizenship Over Criticism
Links for the day
More EPO Leaks on the Way
We hope that Mr. Rowan will actually try to refute what we say and show, not merely point the finger at the messengers
Decommodification is a Corporate Strategy Against Communities
systemd is led by Microsoft and hosted by Microsoft
copyleft.org 'Hijacked' by the People Who Attack the Person Who Created Copyleft
So far there's nothing "tasteless" in copyleft.org, but that can change at any time in the future
Asking People to Take Down Articles and Videos Only Makes These More Popular and "Viral"
If you do something bad, one of the worst things you can possibly do it try to silence those who speak about it
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, July 13, 2025
IRC logs for Sunday, July 13, 2025
Two-Thirds Towards FSF Goal, Richard Stallman to Give Talks in Europe
There are 67 left before reaching the target
Gemini Links 14/07/2025: Politicised Tech and "Leaving GitHub"
Links for the day
Pissing Contests and Pissing Off Everyone
people who came from Microsoft are trying to vex and divide the community
Microsoft Repeats the Mistakes Made by the EPO After We Exposed a Major Microsoft/EPO Scandal 10 Years Ago
That scandal was all over the media, not just in English
The Demise of LLMs
We've just checked BetaNews again. They've dropped all the slop and went back to human authors.
Gemini Links 13/07/2025: Sonpo Museum of Art and FCEUX
Links for the day
Links 13/07/2025: UnitedHealth's Censorship Campaign, Australia Wary of China
Links for the day
Firing Away With Nonsense
Or fighting fire with fire
Links 13/07/2025: Climate Crisis, GAFAM Poisoning the Water
Links for the day
Turns Out LLMs for Code Don't Save Time and Don't Improve Quality
Neither legal nor useful
The Microsofters Will Have an Obligation to Compensate Us
This story isn't just about Microsoft. It's also about corruption, there are many women victims, there is abject "abuse of process", and many more scandals to be illuminated in years to come.
Reproducing at the EPO Instead of Producing Monopolies for Foreign Monopolies With Their Price-Fixing Cartels
Does the EPO recognise the need of well-educated Europeans to bear kids?
Valnet Inc. Dominates Real (Not LLM Slop) GNU/Linux Coverage in 2025
And likely in prior years, too
Free Software Foundation (FSF) Fund Raiser Goes on
Later this month we'll expose another OSI scandal
EPO Staff Representatives Issue a Warning About Staff's Health and Inadequate Care
Even the EPO's own stakeholders (money sources) are openly protesting against what the EPO became
Links 13/07/2025: Partly Assorted News From Deutsche Welle and CBC
Links for the day
Gemini Links 13/07/2025: Board Games and Battle Styles
Gemini Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, July 12, 2025
IRC logs for Saturday, July 12, 2025
Plunder at the Second-Largest Institution in Europe
cuts, neglect, health problems, even early deaths
Links 12/07/2025: Political Developments, Attack on Opposition, Climate Actions
Links for the day
Gemini Links 12/07/2025: Melodic Musings and Small Web July
Links for the day
Links 12/07/2025: Jail in China for Homoerotica, South Korea Discriminates Against Old Workers
Links for the day
If Only Everything Was Rewritten in Rust, We'd Have No More Security Issues?
Nope.
Links 12/07/2025: Birdwatching and Fake/Misleading Wall Street 'Valuation' Figures
Links for the day
Gemini Links 12/07/2025: How to Avoid Writing, Apps for Android
Links for the day
Using SLAPPs to Cover Up Sexual Abuse and Strangulation
The exact same legal team of the Serial Strangler from Microsoft and Garrett already has a history fighting against "metoo"
EPO Staff Committee on Harassment in the Workplace
slides
Adding the Voice of Writers to UK SLAPP Reform
The journey to repair antiquated (monarchy era) laws will likely be long
EPO Takes More Money From Staff for Speculation (Pensions), Actuarial Study Explains the Impact
"The key change in this year’s Actuarial Study, due to cascading the new “risk appetite” from the financial study, is a significant increase of the total pension contribution rate of 5.7 percentage points, up to a total of 37.8%. This is driven by an unprecedented decrease in the discount rate of 105 bps down to 2.2%."
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, July 11, 2025
IRC logs for Friday, July 11, 2025