Federal Circuit Sees Through Purchase of Tribal Sovereign Immunity, Finds that Tribes Cannot Assert Sovereign Immunity in Inter Partes Reviews

In Saint Regis Mohawk Tribe v. Mylan (decision available here), the Federal Circuit rejected Allergen’s attempt to purchase sovereign immunity from an Indian tribe—i.e., Allergen paid millions of dollars to an Indian tribe to allow the tribe to own Allergen’s patents (such that, per Allergen, tribal sovereign immunity would apply thereby shielding the patents from inter partes review). The Federal Circuit held that, because sovereign immunity does not extend to actions brought by the federal government (including where the federal government acts through an agency in an investigation or an adjudicatory-agency action), and IPRs are “more like an agency enforcement action than a civil suit brought by a private party,” tribal sovereign immunity cannot be asserted in IPRs. Simply put, “tribal immunity does not extend to these administrative agency reconsideration decisions.” (Somewhat notably, the Federal Circuit “[left] for another day the question of whether there is any reason to treat state sovereign immunity differently”, but if you ask me, it seems clear that state sovereign immunity will fare no better.)