Sovereign Shield Does Not Extend To Inter Partes Reviews

On Friday, July 20, 2018, the Court of Appeals for the Federal Circuit addressed the controversial application of sovereign immunity for inter partes review ("IPR") in Saint Regis Mohawk Tribe v. Mylan Pharmaceuticals Inc. In Mylan, the Federal Circuit rejected the use of tribal sovereign immunity as an effective defense to an IPR. IPRs are relatively new United States Patent Trial and Appeal Board ("PTAB" or the "Board") proceedings that allow individuals or companies to request that the reexamination of claims in an already issued patent.

Like the individual U.S. States, federally recognized Native American Tribes are immune from lawsuits. This means, generally, Native American Tribes—like the Saint Regis Mohawk Tribe (the "Tribe")—may not be sued without express waiver. However, immunity does not apply where the federal government acting through an agency engages in an investigative action or pursues an adjudicatory agency action. See, e.g., Pauma v. NLRB, 888