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  • Dave Sterrett

Native American Sovereignty and Patent Law


As the U.S. Supreme Court considers a challenge to the expedited "inter partes review" patent process in Oil States Energy Services v. Greene's Energy Group, some savvy lawyers have found a way around the "inter partes review" process completely. In this fascinating article in the New Yorker (https://www.newyorker.com/magazine/2017/11/20/why-is-allergan-partnering-with-the-st-regis-mohawk-tribe), Adam Davidson explains how large pharmaceutical companies are transferring their patents to Native American tribes to avoid legal challenge. Here is how it works: 1) Inter partes review allows for faster and cheaper challenges to patents, which greatly increases lawsuits against patent holders; and 2) Inter partes review does not apply to "sovereign nations". Thus to avoid inter partes review, several pharmaceutical companies are transferring their patents to Native American tribes and then leasing the patents back for millions of dollars a year. The companies protect their valuable patents and the tribes earn a significant sum in helping provide that protection. The landscape is constantly shifting in this area but expect more creative uses of sovereignty in the highly lucrative field of intellectual property.


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