Posts Tagged: "sovereign"

Why did two APJs issue an identical concurring opinion in separate cases?

Notice what APJ Harlow wrote relating to IPR2017-01068 is word for word identical to what APJ Bisk wrote relating to IPR2017-01186. Indeed, the entirety of the concurring opinions are word for word identical. Obviously, the concurring opinions were shared internally in some form or fashion prior to being issued by the PTAB. But why? It seems perfectly reasonable for the St. Regis Mohawk Tribe to want to know who actually wrote these two concurring opinions. Did APJ Harlow and APJ Bisk cooperate and jointly write a single concurring opinion filed in two separate cases? Why would two APJs not assigned to the same case take it upon themselves to collaborate in writing a single concurring opinion? Are APJs not assigned to a case typically consulted? Did someone else write those opinions for APJ Harlow and APJ Bisk to make sure this particular viewpoint was incorporated into the decisions? How did APJ Harlow and APJ Bisk have access to the concurring opinions each would file?

The Year in Patents: The Top 10 Patent Stories from 2017

It is that time once again when we look back on the previous year in preparation to close the final chapter of 2017 in order move fresh into the year ahead. 2017 was a busy year in the patent world, although change was not as cataclysmic as it had been in past years, such as 2012 when the PTAB and post grant challenges began, in 2013 when AIA first to file rules went into effect, or in 2014 when the Supreme Court decided Alice v. CLS Bank. It was, nevertheless, still an interesting year… To come up with the list below I’ve reviewed all of our patent articles, and have come up with these top 10 patent stories for 2017. They appear in chronological order as they happened throughout the year.

The PTAB lacks authority to decide the applicability of tribal sovereign immunity

Native American tribes possess and exercise inherent sovereign immunity. It is also undisputable that such power may be abrogated, limited or qualified only by the express and unequivocal action of Congress. In Kiowa Tribe of Oklahoma v Manufacturing Technologies, Inc., the U.S. Supreme Court explicitly affirmed that no court or administrative agency may interfere with that power absent Congressional legislation… The Court again in Bay Mills reiterated that absent congressional limitations, tribes exercise unqualified immunity. The Court even went so far as to note that “a fundamental commitment of Indian law is judicial respect for Congress’s primary role in defining the contours of tribal sovereignty.”

Amicus Brief Advocating Against Tribal Sovereign Immunity Filed in PTAB Proceedings

The motion of the St. Regis Mohawk Tribe (“the Tribe”) is based on the misplaced theory that Tribal Sovereign Immunity is applicable to administrative proceedings before the PTAB. While the Supreme Court has repeatedly confirmed that, as a matter of judicial construct, Native American Tribes (like the Tribe) can be immune from “suits” in a court absent abrogation or waiver (see Paper 81, at 8), such immunity does not extend to all government action. See, e.g., Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 755 (1998). In this regard, a PTAB proceeding is not a “suit” in court, but instead an administrative proceeding in which the Office (through the PTAB) takes “a second look at an earlier administrative grant of a patent.” Cuozzo Speed Techs. v. Lee, 136 S. Ct. 2131, 2144 (2016) (“Cuozzo”).

Laurence Tribe, Erwin Chemerinsky say PTAB should recognize Tribal Sovereign Immunity

Tribal sovereignty is not a “sham” or a “contrivance,” even when it produces results Petitioners do not like. There is no dispute that the St. Regis Mohawk Tribe is what the Supreme Court has termed a “domestic dependent nation[]” entitled to tribal sovereign immunity and that its agreement with Allergan is a legitimate contract… Moreover, Petitioners’ objections are being raised in the wrong forum. Congress – rather than the Board, the Article II executive, or even the Article III courts – controls the availability of tribal sovereign immunity.