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Rent-A-Tribe: Using Tribal Immunity to Shield Patents from Administrative Review

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dc.contributor.author Brickey, Seth W. R.
dc.date.accessioned 2018-10-23T18:29:37Z
dc.date.available 2018-10-23T18:29:37Z
dc.date.issued 2018-10
dc.identifier.citation 93 Wash. L. Rev. 1449 (2018) en_US
dc.identifier.issn 0043-0617
dc.identifier.uri http://hdl.handle.net/1773.1/1839
dc.description Volume 93, no.3, October 2018 en_US
dc.description.abstract Abstract: In 2017, Allergan Pharmaceuticals entered into an agreement with the Saint Regis Mohawk Tribe (SRMT). Allergan agreed to assign several patents to SRMT and to pay an initial sum of $13.75 million and annual royalties of approximately $15 million. SRMT, in exchange, licensed the rights to use the patents back to Allergan and agreed not to waive its tribal immunity in any administrative proceeding challenging the patents. Two outcomes were expected as a result of this Allergan-Mohawk agreement. First, Allergan would retain the rights to manufacture and market a highly profitable drug while insulating the underlying patents from an unforgiving administrative inter partes review (IPR). Second, SRMT would embark on a new business venture of collecting and relicensing patents from third parties, effectively “renting out” its sovereign immunity. The response from lawmakers, the judiciary, the executive branch, and the public at large was acrimonious. The agreement was branded in public forums as a “sham” and the Patent Trial and Appeal Board held the patents assigned to SRMT were not shielded by tribal immunity. This Comment argues the Allergan-Mohawk agreement is a legally effective means of avoiding IPR. Absent an express waiver of tribal immunity by Congress or the tribe itself, a tribe may not be subject to a private claim. This rule extends to IPR proceedings which closely parallel private suits. Therefore, contracts like the Allergan-Mohawk agreement effectively shield patents from IPR. en_US
dc.language.iso en_US en_US
dc.publisher Seattle: Washington Law Review, University of Washington School of Law en_US
dc.subject Comment en_US
dc.title Rent-A-Tribe: Using Tribal Immunity to Shield Patents from Administrative Review en_US
dc.type Article en_US
dc.rights.holder Copyright 2018 by Washington Law Review Association. en_US

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