In late 2017, we learned that patent trolls (especially pharma patent gougers) were paying US Native Indian tribes to act as fronts for them in order to block review and cancellation of bogus patents — the tribes have a treaty right to "sovereign immunity," which protects them from some forms of litigation.
The moved sparked Congressional investigations and dire warnings from pharma execs that the trick was so dirty it would hasten the day that the public decided enough was enough and demanded universal healthcare.
Now, the United States Court of Appeals for the Federal Circuit has unanimously held that sovereign immunity does not protect patent trolls, because reviewing a patent isn't a lawsuit, it's an "agency enforcement action," and that's not covered by sovereign immunity arrangements.
In short, an IPR isn’t a lawsuit. With no lawsuit, there can be no sovereign immunity.As the three-judge panel concluded: "The Director’s important role as a gatekeeper and the Board’s authority to proceed in the absence of the parties convinces us that the USPTO is acting as the United States in its role as a superior sovereign to reconsider a prior administrative grant and protect the public interest in keeping patent monopolies ‘within their legitimate scope.’"
Allergan can now choose to appeal further to the Supreme Court of the United States, which only agrees to hear a tiny percentage of cases.
Court: Native American tribe can’t be a “sovereign” shield during patent review [Cyrus Farivar/Ars Technica]
