Court: Native American tribe can’t be a “sovereign” shield during patent review

Enlarge / Mylan Inc. CEO Heather Bresch holds up a two-pack of EpiPen as she testifies during a hearing before the House Oversight and Government Reform Committee September 21, 2016 on Capitol Hill in Washington, DC. (credit: Alex Wong/Getty Images)

In a unanimous decision, an appellate court has resoundingly rejected the legal claim that sovereign immunity, as argued by a Native American tribe, can act as a shield for a patent review process.

On July 20, the United States Court of Appeals for the Federal Circuit found in a 3-0 decision that the inter partesreview (IPR) process is closer to an "agency enforcement action"-like a complaint brought by the Federal Trade Commission or the Federal Communications Commission-than a regular lawsuit.

IPR is a process that allows anyone to challenge a patent's validity at the United States Patent and Trademark Office-it was used famously in 2017 to reject the "podcasting patent."

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