A Clever Scheme To Protect Invalid Patents Has Failed

On July 20, the U.S. Court of Appeals for the Federal Circuit turned back an attempt to shield invalid patents from a second look by the U.S. Patent and Trademark Office. The case, St. Regis Mohawk Indian Tribe and Allergan v. Mylan Pharmaceuticals Inc., is an outgrowth of a deal between the St. Regis Mohawk Indian Tribe, whose reservation straddles the New York-Canadian border, and the drug maker Allergan. Trying to escape Patent and Trademark Office review, the company sold a portion of its patent portfolio to the tribe, which, like all officially recognized Native American tribes, enjoys a limited form of sovereign immunity, similar to the sovereign immunity of the 50 states.

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