Ca. Litig. Rev. 2019

Intellectual Property

By Morgan Chu & Dominik Slusarczyk

Inter Partes Review Proceedings Immune from Yet Another Challenge

Creative litigation strategies sometimes flourish amid the high stakes of patent litigation, leaving case studies for posterity. The Saint Regis Mohawk Tribe case is a recent, educational example.1 In this article, we discuss how that litigation recently prompted the courts to decide that American Indian tribes cannot assert sovereign immunity from a key Patent Office proceeding, and we conclude that neither states nor the federal government are likely to fare any better with such a defense.

In the last decade, Congress established inter partes review ("IPR"), an adversarial agency proceeding that allows challenges to issued patents on invalidity grounds. Such petitions are often filed by defendants in district court infringement actions, and the proceedings have become a popular vehicle for resolving validity challenges.

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