PTAB: Tribal sovereign immunity does not provide a basis to terminate IPRs

On February 23, 2018, in a much-anticipated decision, the PTAB ruled that tribal sovereign immunity could not be used to shield certain Allergan Inc. (“Allergan”) patents from review in a number of IPRs. Allergan had assigned its patents to the Saint Regis Mohawk Tribe (the “Tribe”) on September 8, 2017, one week before hearing in the IPRs. Under an arrangement between Allergan and the Tribe, the Tribe granted Allergan an exclusive license back to the patents and received royalty payments in return. The Tribe then moved to terminate the IPRs, urging that its sovereign immunity prevented the PTAB from issuing an invalidity opinion.

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