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April 15, 2019


"[T]his decision puts to rest whether a patentee can avoid IPR proceedings by invoking tribal sovereign immunity: a patentee cannot."

And thank heavens for that. Most tribes dodged a bullet here. If tribal sovereign immunity could be rented out by tortfeasors as a shield to their tortfeasing, there would be no option for the Congress but to curtail tribal sovereign immunity severely, and perhaps to abrogate it altogether. Mercifully, by making clear upfront that tribal sovereign immunity is not a salable commodity, the CAFC ensured that this gambit will not lead inevitably to the complete effacement of tribal sovereign immunity from the legal landscape.

I am not as sanguine as to the "benefit" of this decision, Mr. DeLassus.

I do believe that the animus comes from the view that the arrangement was a sham - and it would have been better for THAT to have been the focal point.

What this result does do is REMOVE a perfectly viable tool for Native American tribes to strike a bargain that could NOT be called a sham bargain.

There is NO benefit to that.

What this result does do is to broaden (impermissibly) the mere notion that a sham was in play. That term should NOT be so loosely bandied about (even if people do not like the deal engaged in). The term "sham" has a definite legal meaning, and what this denial of cert does is to not take the opportunity to clear up a purposefully muddied condition.

What this result does is CONDONE that purposeful muddying.

While there was certainly those in Congress that would have felt compelled to change/curtail/abrogate tribal sovereign immunity, I believe fully that such a move in Congress could well have backfired upon those IF a full and robust discussion were to have been held.

As is - we are left without that discussion. We are left with the mud.

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