Guest Editorial: Yes, Native Americans and Patents Do Go Together

Guest post by Michael Gulliford.  Mr. Gulliford is an advisor to the Saint Regis Mohawk Tribe and the Founder of Soryn IP Group, a patent advisory and finance firm headquartered in New York City.

Native Americans and patents don’t make headlines. That changed when the Saint Regis Mohawk Tribe, located in upstate New York, conceived a lucrative transaction that saw Allergan transfer patents covering the dry eye drug Restasis® to the Tribe. In return, the Tribe agreed to use its sovereign status to protect the patents from a controversial administrative proceeding coined the patent “death squad”, and to license the patents to Allergan. Allergan paid the Tribe $13.75 million upfront, with continuing royalty payments of $3.75 million per quarter.

Although the story is far from over, so much remains unsaid. As an advisor to the Tribe on patent issues, allow me to explain.

#1 – Tribes Are Vilified For Following The Status Quo

Tribes, like States, are sovereigns and cannot be hauled into federal administrative proceedings that resemble lawsuits without consenting.  Here, the Tribe used its sovereign status to shield the patents from attack in a new administrative proceeding called Inter Partes Review (IPR), held at the Patent Trial & Appeals Board (PTAB). Generic companies remain free to challenge patent validity in district court.

From the hysteria, you’d think the Tribe is the first to invoke sovereign immunity with IPRs. It is not. State universities are, and began successfully doing so before the Allergan deal.

At least five major state universities have asserted their immunity as arms of their sovereign states with respect to IPRs. Some invoked sovereign immunity with corporate partners. Yet, only the Tribe faced Congressional hearings and proposed legislation. And in its recent decision, the PTAB, which hears IPRs, took the remarkable step of concluding that the Tribe’s immunity did not apply to an IPR because it was lesser than the immunity held by States.

In doing so, the Board overlooked the guidance of our nation’s most prominent Constitutional law scholars on the exact issue at hand. But as the leaders of numerous Indian tribes have told me, this treatment is par for the course. Once Native Americans engage in economic activities that were previously considered the status quo, the claws come out.

#2 – No One Gives Native Americans Credit

The most recited narrative of the deal is that Allergan “rented” the Saint Regis Mohawk Tribe’s sovereign immunity. This point of view is based on racism at worse and paternalism at best. Most can’t fathom that an Indian tribe, itself no stranger to devastating property loss, could be sophisticated enough to appreciate how recent changes to the U.S. patent system have failed innovators, or to have done a deal to right such wrongs.

But as I’m sure Allergan quickly appreciated when it visited the Tribe’s reservation, the Saint Regis Mohawk Tribe challenges convention. Its leadership is highly sophisticated and entrepreneurial. With limited powers of taxation, and the enormous burden of providing healthcare, addiction treatment, housing and education to its people, the Saint Regis Mohawk Tribe innovates to create revenue.

The Tribe’s broadband company “Mohawk Networks,” is solving the “last mile” problem in regions of Northern New York by building and expanding its high-speed fiber network. While local auto and aluminum factories have shut down, costing local jobs, the Tribe invested heavily in a new soy bean processing plant located close to the Tribe’s reservation. The plant will support farms that supply the State’s Greek yogurt industry, and create needed jobs.

The Tribe’s Office of Technology, Research and Patents, founded well before the Allergan deal, is pursuing a host of patent and commercialization initiatives. All are examples of the Tribe’s desire to steer away from casino gaming as its sole revenue source. And there is more to come.

#3 – PR Is Obfuscating A Conversation That Needs To Happen

Created in 2011 in response to “patent troll” problems, IPRs were supposed to give companies a cheaper way to challenge the validity of patents they are accused of infringing. But by implementing rules that strongly promote patent invalidity findings, IPRs inflicted significant pain for companies heavily reliant on patents.

It isn’t even controversial that IPRs have clouded the validity of most U.S. patents. The U.S. Chamber of Commerce recently demoted the U.S. patent system to #12 in the world because of IPRs.  Numerous Supreme Court and appellate judges have railed against IPRs. The Wall Street Journal Editorial Board highlighted the harm that IPRs cause to American innovation.

Given these truths, one could make a compelling argument that the Board of any company reliant on patents should do whatever is necessary to avoid IPRs. Why shouldn’t companies fight back and do deals to avoid having their crown jewels invalidated?

The answer is PR and political pressure to not do such deals. Big tech likes IPRs because killing patents increases the bottom line. It is cheaper to invalidate patents than to compensate innovators for the use of their technology. Generic drug companies like IPRs because the lax IPR standards that were set up to make “patent troll” patents easier to kill can be used to more easily wipe out pharma patents. Although Congress carefully sculpted legislation to govern pharmaceutical patent challenges — called the Hatch-Waxman Act — IPRs have undone the delicate balance that Hatch-Waxman strikes.

But conversations about these issues are not happening because huge sums of money have been spent vilifying Allergan and the Tribe.

So let’s start asking new questions. Why are tribal sovereigns being treated so much differently than States? And why is way more attention being paid to the Tribe’s transaction than to fixing the flawed IPR process that forces innovators to need the Tribe’s assistance?

In the end, my bet is that history will thank the Saint Regis Mohawks for enabling changes that bring the United States patent system back to #1 in the world.

Michael Gulliford is the Founder and a Managing Principal of Soryn IP Group, a patent advisory and finance firm headquartered in New York City that closed almost $140 million in patent deals in 2017. In addition, Soryn Capital, manages one of the largest funds in the U.S. dedicated to patent litigation finance. Prior to founding Soryn, Michael was a partner in the Intellectual Property group at Kirkland & Ellis LLP.

114 thoughts on “Guest Editorial: Yes, Native Americans and Patents Do Go Together

  1. 15


    anon June 16, 2018 at 6:33 am
    Your questions remain bogus.

    And for the reasons given to you.

    Those reasons have not changed.

    Your lack of understanding has not changed.

    Your repeating the same thing that has been shown to be bogus does not change the bogus nature of what you are repeating.

    Calling the items that have called YOU out as somehow being that of a politician or of a tr011 (neither of which fit) does not change the facts presented to you, the fact that you have not addressed these facts, and the fact that repeating a bogus question does not change that question from being a bogus question.

    All that YOU are doing is clenching tight your eyes and riding the same merry go round – as the last time you ventured forth with your bogus question.

    REPLY: For someone who doesn’t know what Statutes at Large are and how they function regarding our Constitution and how common law is legislated, your latest post piled on top of all of your post carries no weight. Your posts remain bluster with no substance.

    Given the simple fact you know nothing about our Constitution, further replies to your bluster is a waste of time. As others who read your posts have learned: “ANON knows nothing about our Constitution when challenged to engage in dialog regarding fundamental Constitutional functions RE. Statutes at Large, and is a waste of time.”

    1. 15.1

      This is the item that applies to you:

      carries no weight. Your posts remain bluster with no substance.

      As I initially posted:Welcome back Mr. Jones. I see that you are going down the exact same path as previously.

      Please consider that all previous rebuttals are supplied, and skip right to the part where you run away from these things, unable to supply the answers asked of you.

      Not sure why you want to yell out “look at me look at me” by bumping this discussion to the top of the thread post, and I don’t know why you are so stubborn in your ignorance. I suppose that you are not an attorney, and fancy yourself that you think that you have stumbled upon some awesome insight into the law that NO attorney has ever done before. The plain simple truth of just why “NO attorney has ever done before” is because you have stumbled, not into some awesome insight, but rather, you have stumbled into some thicket of weeds of fallacy. No attorney joins you in that thicket for a reason quite different than the one that you so frantically grasp.

      As to “engage in dialog regarding fundamental Constitutional functions“, it you that “disengaged” on your rather odd point of Constitution common law. See link to patentlyo.com

    2. 15.2

      and how common law is legislated

      Common law… legislated?
      On top of your Constitution common law, you now have legislated common law…?

      You really are just throwing phrases around in a most haphazard manner.

      Please stop embarrassing yourself.

  2. 14

    While the entire point #2 is very weak, this sentence “This point of view is based on racism at worse and paternalism at best” takes if from merely weak and into the realm of Ann Coulter-like ludicrousness.

    What started off as hopefully an intelligent discussion of the case goes off the rails here.

    I hope if the author wishes to republish, he re-works point to to delete above-quoted sentence, or just deletes point 2 entirely. It doesn’t help his argument.

    1. 14.1

      error/correction:

      “I hope if the author wishes to republish, he re-works point TWO to delete the above-quoted sentence…”

      (I can’t even blame auto correct for that one)

    2. 14.2

      I firmly disagree that point #2 is “very” weak.

      Having said that, I am not impressed with how that point is written, and would agree that the point could be more forcefully made.

      Also, below, this point is labeled as a strawman – that would be incorrect. A strawman is when an argument no one else is making is presented so that THAT argument can be torn down (a purposefully weak argument presented to be negated).

      While “the other side” is NOT coming out and saying that the reason why they are acting so is in any sense paternalistic (or a sign of racism) – who in their right mind would label their own position thusly?), the charge is being brought up NOT to knock it down, but to embrace it. Whatever that is, it is not a strawman.

      Fundamentally different, I think the way it is framed is a bit weak because it is attempting to play the “Race” card. I “get” ‘that this nation has a woeful record in dealing with Native Americans. I “get” that some of the attempts at rectifying those woes are beyond the line of “being paternalistic.”

      A better emphasis though (in my humble opinion), is to simply highlight the fact that the deal is NOT a sham (as that legal term MUST be understood) because the Indian tribe has bargained for benefits in the deal.

      Then – and only then – if those benefits are somehow sought to be minimized or denigrated, would a forceful asking as to why the benefits ARE being so attempted to be minimized could be “played” and the ANSWER to that question would be “fair game” for being objectively – but no less critically – evaluated for paternalism.

      The stronger course then is to show the deal is not a legal sham. Those arguing that it IS a legal sham would then have to “be careful” to avoid being paternalistic as to the attempts to discount the benefits so enumerated.

      This too is where I think the government hit a roadblock in there attempt to paint this as a sham. They started out fair enough, but when push came to shove, and the ENTIRE LEGAL principle had to be objectively evaluated, I do not think that they could fairly use the legal term of “sham deal” BECAUSE the tribe DID obtain sufficient actual benefits from the deal.

      Any injection of emotion and feelings that merely serve to cloud the necessary legal points that need be analyzed should be rejected.

      1. 14.2.1

        Sort of off-topic, but why do you seem to be the only regular commenter without a constant avatar?

        Even though I only drop in irregularly, I’ve gotten where I can skim comments and tell regulars by avatar, except yours shift around.
        Like, 3 just on this page.

        1. 14.2.1.1

          this avatar was due to a typo.

          I normally use two avatars in part because of the non-objectively applied “count filter” artificially suppresses the conversations that I engage in.

          1. 14.2.1.1.1

            I see; thanks.

  3. 13

    Mr. Gulliford writes, “Tribes Are Vilified For Following The Status Quo”.

    Two things on this. First, I saw little in the way of vilifying of Indian Tribes in the pop press. I did see a lot of vilifying of Allergan Pharma.

    Second, as I think someone already mentioned (just skimmed the threads quickly), it seems somewhat disingenuous to point to the five universities which have used sovereign immunity to avoid the Darth Panels, without noting the distinction. invoking immunity on behalf of a university’s owned property (or co-owned with a corporate sponsor) is quite a bit different than an apparent scheme by a corporate entity to manufacture immunity via 11th-hour deal making with an hitherto uninterested, uninvolved sovereign.

    But also as Anon2 mentions at 1.1: “The brouhaha would NOT have occurred if the patent were directed at a controller for a video game console.”

    I think this is a correct statement. I’ll go further and say if it hadn’t been an Evil Pharmaceutical Corporation (or an Evil Big Crude Oil) trying to do this, it would have made waves only within patent/legal circles.

    1. 13.1

      on behalf of a university’s owned property [_] is quite a bit different than an apparent scheme

      NOWHERE – anywhere – is any such limitation on the alienability of property (that of patents – be that property deemed to be franchise property OR personal property) is such an item present.

      How many people are suffering from the “feeling” that this “must be wrong” based on this plain error?

      Please people – separate the feelings from the objective law and apply just a little critical thinking on this point. It is not as if this is a new point (or even a surprising one). There is NO “de facto” “abuse” here.

      1. 13.1.1

        Hi anon,

        You seem to be arguing against something I never said. Of course patents are fully alienable and Allergan is perfectly allowed to sell or even give them to the SRMT or anyone else.

        What I am saying is that the argument “but but 5 universities have done it, too!” is only a partial description of the facts.

        1. 13.1.1.1

          Thanks Mellow – I agree with your point here. There is only a partial description of the facts.

          The additional item though is one that I must take issue with. You “go there” (even as you may have not realized it) by attempting to draw a distinction that makes no difference – as pertains property and the alienability of property that is at issue here: patents.

          For some reason – and you are clearly not the only one – there is some “angst” or attempt at a “de facto” “wrongness” associated with the fact that the owner of the patent may not be the one that spent the time and money developing the item to which the patent protection is “directed to.” It’s as if the law were written that the benefit would ONLY inure to that first actual inventor, and such is not, nor has ever been even remotely countenanced under our Sovereign design.

          ANY such attempt to place this type of “condition” is a condition too far – given the EXISTING law. Malcolm quipped that laws may be enacted to limit transactions of property, and that may be true as far as that statement goes (for example, dangerous property may be so designated and controlled).

          But his quip falls FAR short (and he made his quip – with little doubt – with the attempt at an emotional muddling) when it comes to the property at issue here: patents.

          As I indicated – and the point that DOES apply to you and to anyone else wanting to indicate/implicate/suggest/or flat out state otherwise – alienability of the patent property right is just NOT constrained in any sense of “fairness” or innate “wrongness” or – gasp – “abuse” in the given situation.

          The actual legal analysis is different.

          As I have also posted, that actual legal analysis is directly on the LEGAL meaning of the term “sham deal.”

          The use of emotion, or any other mechanism to effect a less than critical evaluation is something that any decent attorney should be able to pick up on – and those attempts earn the disdain of all.

          I “get” the notion of appealing to emotion.
          I “get” that such is – when used appropriately – a useful tool.

          I also “get” the MISuse that such so often comes with (and so often comes from the sAmeones here.

    2. 13.2

      Post #13 says everything that I might want to say about the original article above. Well said, Mr Marsher.

      1. 13.2.1

        everything that I might want to say

        That’s not saying much (given 13.1).

        Just saying

      2. 13.2.2

        Thank you, Greg.

  4. 12

    “This point of view is based on racism at worse and paternalism at best. ”

    It’s all just the evil white cis hetero christian patriarchy at play.

    Truthfully most everyday people see “Indian Nations” as something of a joke, and not as in the funny kind of joke. Certainly people drawn from that pool are not going to start bowing down to their “legal authority” without some even more evil even more white even more cis even more hetero even more christian even more patriarchal authority to force them to.

  5. 11

    The Fed. Cir. is set to shortly decide this legal issue. A blog-issue-obfuscating plea from a patent litigation financing organization is unlikely to affect that outcome, unlike an effective amicus brief. [Whereas the prior litigation conduct of the [actual] patent owner and the nature of the patent involved might, to some extent?]

    1. 11.1

      For someone who disses threads and comments so much, your own ratio of comments to amicus briefs is woefully out of whack, Paul.

      So instead of the type of mindless ad hominem that is so often the blight here, perhaps you would do more than merely v0mi1t our conclusory labels and provide a substantive point…

  6. 10

    It is cheaper to invalidate patents than to compensate innovators for the use of their technology.

    That would depend on the license terms, I would think.

    But then again this is a genuine b0 tt0m – feeder we’re talking to. Nuance kinda sails right over the head of these types.

  7. 9

    The author: [B]y implementing rules that strongly promote patent invalidity findings, IPRs inflicted significant pain for companies heavily reliant on patents.

    Nothing in the IPR rules “promoted” “patented invalidity findings.” Either the patent claims are invalid or they are not and that determination was made based on the statutory requirements for a patent. If a company is in possession of many invalid patents, then it’s going to be in “significant pain” when those patents are tested under any system that “implements” and applies the pre-existing patent statutes to the claims of those patents. What everyone needs to remember is that the “significant pain” in that instance is (1) totally deserved and (2) a very small price to pay for the pleasure that will result to untold other companies who no longer need to worry about the cr @p patent and its greedy litigious owner.

    My goodness but Congress passed the AIA for the purpose of causing “significant pain” to the worst actors in the patentsphere. Bipartisan support all around. Get over it already.

  8. 8

    The attempt by the maximalists to link this grift to the Oil States decision is as unsurprising as it is bizarre.

    First it was KSR, then it was Mayo, and now apparently it’s Oil States that will be the “death of patents” and the direct cause of every woe in the world. Meanwhile, every adult who isn’t drunk on the k0 0 l aid can see the actual numbers for themselves.

    What a pack of entitled bu ff 00 ns.

  9. 7

    a controversial administrative proceeding coined the patent “death squad”

    LOL

    There’s nothing “controversial” at all about inter partes proceedings and the “death squad” insult bubbled up from the same fever swamp that squawked about how KSR and Mayo were the “de@th of patents” (in fact, more patents were applied for and granted in the past five years than at any point in the history of the patent system).

    PR Is Obfuscating A Conversation That Needs To Happen

    Yes, it certainly is, Michael! Let’s talk about a certain class of attorneys who will do and say literally anything because, hey, it’s all just a big c0n game, right? Whoever has the most gold at the end of the day “wins”. Right?

  10. 6

    I am so lost. Is this an actual public defense of using American Indians to avoid litigation that everyone else is subjected to? No one is saying Indians are stupid or anything of the sort as the article seems to use as a diversion to the issue. We just believe that it’s a loophole that needs to be closed because it’s being abused.

    Michael J. Feigin, Esq; Patent and Trademark Attorney
    http://PatentLawNY.com

    1. 6.1

      Michael,

      You are presuming the conclusion to be arrived at with the notion of “it’s being abused.”

      Whether or no this IS abuse is the point to be proven – not a label to be pre-supposed based on “feelings.”

      The fact of the matter is that – very much like the State’s – there pre-exists a mechanism of preventing “suit.”

      The article here postulates that THAT pre-existence is what is “not new” – and in that sense, the article is correct.

      You may deign to call this a “loophole,” and you are free to actually make that argument (as opposed to merely using a label).

      The point remains though that the avoidance of suit is neither new, nor exclusive to the “sovereign” of tribes. It DOES mirror (albeit not perfectly – for reasons provided in the article) the same avoidance mechanism of the States, but the mechanism CANNOT be said to have been purely contrived for this application.

      For example, the States played “the gambit” first. And it matters NOT AT ALL the supposed “transaction to obtain the property right” BECAUSE patents have ALWAYS been meant to be FULLY alienable AS property. To try to “stick” that notion in as some type of distinction is to play to a fallacy that patent property is not (or should not) be fully alienable, or that there are simply some aspects of the property right that cannot be alienated. IF you want to make that argument – then you very much need to present SOME legal reasoning (again, mere labeling based on “feeling” falls not only tremendously short, but the fact that there is ONLY “feeling” indicates that it is nothing but an emotional ploy).

      Further still – as the article points out – the “playing field” is not even MEANT to be level when it comes to the ability to call on the sovereign immunity principle. This stems from a basic understanding OF that principle (which, you may find upon reflection, is a source of your “feelings” of this being somehow “abusive”). Upon reflection, you may realize that you may feel that ANY use of the “sovereign immunity” principle (by ANY sovereign) strikes you as “abusive” when in FACT, the fact that such principles exist – and have always existed – should dispel that “feeling.”

      I think that when you get over the mere label (or feeling) aspect, you will come to the realization that what needs to happen here is NOT limited (or particular even) to patent law. What needs to happen here is the review of the deal to see if the deal is a sham deal. Sham deals have a particular understanding in the legal context.

      I will point out that this notion has been put on the table for discussion previously (by at least yours truly), and I will further note that the government DID present in its case a detailed START of an argument indicating its belief that the deal was a sham deal.

      I will also point out the (rather surprising) aspect that the government did NOT come to the actual (and stated) conclusion that the deal WAS a sham deal.

      That is a rather critical point to remember here.

      1. 6.1.1

        patents have ALWAYS been meant to be FULLY alienable AS property

        “Mean to be”? LOL

        News flash for the “anon” and his fellow waln u t-br@ined glibertarians: legal restrictions on the transfer of all kinds of property rights are often appropriate and often desired.

        In the future, you can expect more restrictions on the “alienability” of patent rights. Nothing wrong with that.

        1. 6.1.1.1

          Your disdain for personal property is noted.

        2. 6.1.1.2

          No worries, oh Chief Local Sycophant for IP pirates – your property-taking regime is ‘secure’, for now.

          No inventors were ever included in the sham ‘hearings’ routinely trotted out by members of Congress legislatively grandstanding for the ‘Record’ in this matter, purporting to represent the affected parties in lawmaking deliberations.

          Your ilk, made damn sure that the said misrepresentation never reached the public’s consciousness during the one-sided U.S. patent law supposed “debate” that erased 200 years of prior jurisprudence.

          And now, the individual and small entity inventors are no longer present in this industrial community.

          Let that be repeated slowly, for effect; since non-humongous inventors ARE ‘invisible’ to you: there are NO non-large entity inventors left in this space. However – no surprise! – you folk continue to disingenuously pretend there is still something there to see.

          Throughout this ‘kangaroo show’ sham of a “debate” n the U.S. patent space, actual, real-life inventors as persons were, unquestionably, heavily suppressed and kept invisible – and now, that ‘invisibility’ means that our departure, also goes unnoticed.

          Nothing to see here; time to move on – you and your IP pirate masters, have SUCCEEDED at driving the ‘pesky’ small inventors away.

          One can only conclude, from your continued participation and urgency to beat a now-dead horse, that you are irrationally obsessed about this topic.

          Meanwhile, an entire generation and more of American inventors, will never trust the USPTO or the Federal govenrment – ever again.

          Therefore, at this point: your continued pursuit after such a fabulously, overwhelmingly successful campaign and putative “battle”, can only be prima facie evidence that your biased sentiments against inventors, your incipient and personal enjoyment of cruelty and snobbish condescension at those you have significantly helped to harm; are manifestations of a person who is so bitterly partisan that you actually enjoy and feel happiness, at the harm you have helped to cause. Your perfidy in this regard knows no bounds, and it is evident that you are sallow, disingenuous and treacherous.

          Moreover, you find such prolonged vicarious thrill in persistently derogating an already vanquished opponent. Therefore, the evil corruption of your charter is laid bare for all to see. There is nothing you could ever say, write or do as a human being, that will wash away the stain of your treachery.

          And all, behind the courageous anonymization of a keyboard attached to the internet.

          Completely despicable. Words can scarcely contain the degree of opprobrium that you and your corrupt ilk truly deserve for such perpetrating such incessant bullying, so safely backed up by a broad swath of coordinated forces:
          1. censorship practiced across as a convention across hundreds of ‘influencer’ Internet sites (such as the former practice of this site run by Prof. Crouch),
          2. “public interest” organizations where 80-100% of their funding came from Google, Inc. (now Alphabet, Inc.),
          3. university professors with ties to and evident support from the same or similar corporate interests and ‘players’ in the so-called “Big Tech” space,
          4. upwards of $1 Billion spent on ‘K Street’ type lobbying by the same on behalf of this issue, for the past 12 years at least, involving
          5. large quantities of political “contributions” to specific lawmakers in the U.S. Congress, and
          6. a higher proportion of current or former corporate employees of agents of any one entity in the U.S. government at its highest Executive levels, than any Presidential administration in U.S. history (Google, Inc., in the administration of former pres., Barack Obama).

          Hooray for you! You guys wanted to see individual inventors erased? That’s what it took, to get what you wanted. Trade secrets only, henceforth, please; and for only the fortunate few where some sort of commercial practice in secret of their inventions, can be established. Otherwise, don’t even bother.

          Now go ahead, call us “patent trolls” for this painfully learned lesson.

    2. 6.2

      Sadly, no one…not attorney or judge or anyone else following this hoax including any MSM investigative reports… has asked this question…a question so simple, it is hard:
      “Where is the proclamation ratified by the voters of the United States to amend our Constitution to make the health, welfare, safety and benefits of a select group of U.S./State citizens distinguishable because of their “Indian ancestry/race?”

      1. 6.2.1

        Welcome back Mr. Jones. I see that you are going down the exact same path as previously.

        Please consider that all previous rebuttals are supplied, and skip right to the part where you run away from these things, unable to supply the answers asked of you.

        1. 6.2.1.1

          Don’t see an answer to my question…just your usual bluster and no substance

          1. 6.2.1.1.1

            You don’t see an “answer,” as has been explained to you many times now, your “question” is a bogus question, based on a fallacy and your personal misunderstanding of the law.

            Had you bothered in the past to follow up on the questions and replies put to you, then you would have recognized this by now.

            As is, you would rather wallow in your fallacies and NOT come to grips that your view is simply not in accord with the law.

            1. 6.2.1.1.1.1

              Your reply is your usual Sophistry…answer the Constitutional question: ““Where is the proclamation ratified by the voters of the United States to amend our Constitution to make the health, welfare, safety and benefits of a select group of U.S./State citizens distinguishable because of their “Indian ancestry/race?”

            2. 6.2.1.1.1.2

              You continue to evade my question as do your colleagues. Considering you lack any knowledge of our Constitution, your latest reply is no surprise.

              Considering you continue to evade my first question, here’s another one you will assuredly evade as well using your vast sophistry:
              ‘Where is the Statutes at Large for U.S.C. Title 25-INDIANS?

              1. 6.2.1.1.1.2.1

                The only “continue to evade” is your own, Mr. Jones.

                As I noted at the (re) onset here: Welcome back Mr. Jones. I see that you are going down the exact same path as previously.

                Please consider that all previous rebuttals are supplied, and skip right to the part where you run away from these things, unable to supply the answers asked of you.

                1. Your latest post affirms your lack of any knowledge of
                  our Constitution…my second question is a simple question for anyone who can search the internet including you: “Where is the Statutes at Large for U.S.C. Title 25-INDIANS?”

                  Your evasion of providing the Statutes at Large for U.S.C. Title 25-INDIANS affirms your total lack of how our U.S. Constitution’s common laws are enacted. And, yet, you preach to others who are entitled to know exactly how our Constitution makes for no provisions for any of your posts…past and present.

                2. You clearly have no understanding of this SCOTUS decision emphatically defining one’s U.S./State citizenship…post 1924 citizenship, our U.S. Constitution is controlling of U.S./State citizens with “Indian ancestry/race!”

                  You have provided no Amendments to our Constitution to change that tenant. Others who are reading your posts will readily understand you have no understanding of our Constitution’s fierce protection of one’s U.S./State citizens after reading this SCOTUS decision:
                  United States Supreme Court OSBORN v. BANK OF U.S., (1824) No. 80
                  Argued: Decided: March 19, 1824
                  “A naturalized citizen is indeed made a citizen under an act of Congress, but the act does not proceed to give, to regulate, or to prescribe his capacities. He becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature, is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual. The constitution then takes him up, and, among other rights, extends to him the capacity of suing in the Courts of the United States, precisely under the same circumstances under which a native might sue. He is [22 U.S. 738, 828] distinguishable in nothing from a native citizen, except so far as the constitution makes the distinction. The law makes none.”

                3. The only confirmation Mr. Jones is that you still refuse to follow the path set out for you the last time you visited us.

                  That path clearly shows (if you were willing to follow it) that what you are asking for here NEED NOT be answered.

                  That you want an answer to your bogus question changes nothing. Your question remains bogus, and the FACT that no answer at all need be presented remains a FACT. You want an “amendment” to a something that is merely a fallacy and as such, no amendment is required.

                  Quite simply, you are pulling things out of some nether region. Where exactly did you obtain this concept of “our U.S. Constitution’s common laws are enacted“…?

                  There is NO SUCH THING as common law Constitution law.

  11. 5

    The editorialist and several commentors above are ignoring an enormous elephant in the room here, and that is that the reason that Congress is so up in arms about this is not because they are racist, or paternalistic, or hypocritical, but because Allergan is abusing tribal sovereignty as a way to “avoid having their crown jewels invalidated” by shielding their patents from an invalidity finding under the evidentiary standard that Congress, after years of debating the issue, decided was appropriate under the AIA: preponderance of the evidence. The only way this deal makes any sense financially for Allergan is that they feel that their patents are strong enough to stand up to a district court invalidity defense under the clear and convincing standard, but not under the lower standard that, once again, Congress determined to be appropriate for determining validity of previously granted patents, and which the Supreme Court has upheld as constitutional.

    The invocation of state sovereign immunity by universities is also less offensive for a related reason–except for their sovereign status, they are inventors/patent owners in the “usual” course of business. They spent large sums to develop their patented inventions and have applied for patents to protect those inventions. The added benefit of their sovereign immunity is incidental to the essential research function that they perform and which patents help fund.

    If the St. Regis Mohawk tribe wants to start shelling out billions and developing new products, then, by all means, let them claim sovereign immunity for the patents on those inventions. Or if they want to opperate as a patent holding company for the benefit of their members by purchasing patents that they can license for financial gain, go right ahead. But this kind of “assignment,” that passes bare title to the tribe and allows an unrelated corporation to retain all of the essential rights of patent ownership while enjoying the benefit of tribal sovereignty is a sham that is an affront to the authority of Congress. Shame on Mr. Gulliford for this bad-faith attempt to insert race into the discussion.

    1. 5.1

      The editorialist and several commentors above are ignoring an enormous elephant in the room here, and that is that the reason that Congress is so up in arms about this is not because they are racist, or paternalistic, or hypocritical, but because Allergan is abusing tribal sovereignty as a way to “avoid having their crown jewels invalidated” by shielding their patents from an invalidity finding under the evidentiary standard that Congress, after years of debating the issue, decided was appropriate under the AIA: preponderance of the evidence. The only way this deal makes any sense financially for Allergan is that they feel that their patents are strong enough to stand up to a district court invalidity defense under the clear and convincing standard, but not under the lower standard

      I disagree with this. There are a lot of important differences between IPRs and district court litigation (e.g., who can challenge a patent, expense of challenging a patent, whether patentee can save the patent by settling, whether patentee can narrow the claims at risk by not asserting infringement of certain claims, guarantee of a real “trial,” ability of patentee to have some control over forum, availability of discovery, statistical rates of invalidation, differing views of the patent system between judges, juries, and APJs). I’m not sure why one should assume that the preponderance standard is the thing that patent owners object to or that drives efforts to avoid IPRs. This comment also seems to assume that jury or APJ factfinding uncovers some kind of objective truth about the strength of the patents, as opposed to just the result some people reached after hearing from some lawyers and looking at some evidence.

      It’s somewhat fair to suggest that the policy arguments against IPRs were aired and rejected in connection with the AIA. But patentees have every right to press their view that six years of experience with IPRs has shown that Congress’s judgment was wrong or perhaps needs some adjustment.

    2. 5.2

      No such thing under of Constitution as “tribal sovereignty!”

      1. 5.2.1

        Treaty clause – right there in black and white.

        1. 5.2.1.1

          Nope. Our Constitution makes for no provisions for ‘treaties’ with constituency and as of the passage of the Indian Citizenship Act of 1924, they are U.S./State citizens. And, you have not provided any Amendments to our Constitution to make your post true.

          Here’s unbiased proof of my statement:

          link to lexrex.com
          The object of treaties is the regulation of intercourse with foreign nations, and is external.”
          An especially interesting piece of evidence supporting the conclusion that the Treaty Clause was intended and understood by the Framing and Ratifying Conventions not to authorize the President and Senate, by a treaty, either (a) to override the Constitution, in whole or in part, or (b) to make domestic law (as distinguished from governance of relations with foreign governments),
          [Section 52.] “Treaties are legislative acts. A treaty is a law of the land. It differs from other laws only as it must have the consent of a foreign nation, being but a contract with respect to that nation . . . 2. By the general power to make treaties, the Constitution must have intended to comprehend only those objects which are usually regulated by treaty, and cannot be otherwise regulated. 3. It must have meant to except out of these the rights reserved to the States; for surely the President and Senate cannot do by treaty what the whole Government is interdicted from doing in any way.”

          Another fallacious statement is that a treaty “can override the Constitution;” which defies historical truth, as we have seen. A related and most preposterous allegation is that a treaty “can cut across the rights given the people by the constitutional Bill of Rights”–than which nothing could be further from the truth, partly for two reasons: the Constitution does not authorize any such treaty and, secondly, the people are, of course, given their rights by God and not by themselves through their own creation: the Constitution (including its Bill of Rights, or Bill of Prohibitions, Amendments). The quoted statement is farcical.

          1. 5.2.1.1.1

            and as of the passage of the Indian Citizenship Act of 1924,

            Your error in ascribing an Act of Congress as having the power to change the Constitution has been explicated to you previously in detail.

            You then ran away.

            You were ALSO SHOWN in that very Act, the passage that defeats your twisted understanding of what that Act was meant to do (somehow conflating that Act with unconnected dicta from a Court case).

            You ran away from that as well.

            May I suggest since you STILL refuse to understand how law actually works (and what can and what cannot change the Constitution; and what the Act of 1924 did – and did not – say) that you run away again?

            1. 5.2.1.1.1.1

              Nope.

              The Constitution itself is controlling once U.S./State citizenship is achieved. This SCOTUS decision debunks your post:
              United States Supreme Court OSBORN v. BANK OF U.S., (1824) No. 80
              Argued: Decided: March 19, 1824
              “A naturalized citizen is indeed made a citizen under an act of Congress, but the act does not proceed to give, to regulate, or to prescribe his capacities. He becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature, is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual. The constitution then takes him up, and, among other rights, extends to him the capacity of suing in the Courts of the United States, precisely under the same circumstances under which a native might sue. He is [22 U.S. 738, 828] distinguishable in nothing from a native citizen, except so far as the constitution makes the distinction. The law makes none.”

              These additional SCOTUS decisions affirms Osborn:
              1. United States Supreme Court AFROYIM v. RUSK, (1967) No. 456 Argued: February 20, 1967 Decided: May 29, 1967
              2. United States Supreme Court
              ADARAND CONSTRUCTORS, INC. v. PENA, (1995) No. 93-1841 Argued: January 17, 1995 Decided: June 12, 1995

              Citizenship and our Constitution’s 14th Amendment cannot be made more clear to you…post passage of the Indian Citizenship Act of 1924, they are U.S./State citizens entitled to no more and no less than every other non-Indian U.S./State citizen.

              None of your posts-past or present-has changed that Constitutional tenent!

            2. 5.2.1.1.1.2

              Once again, you have displayed your lack of understanding of our Constitution. Once citizenship is achieved, our Constitution is controlling. Our Constitution itself made null all references to “Indians” in our Constitution…Congress/Presidents cannot ‘enlarge or abridge’ one’s U.S./State citizenship absent an Amendment to do so.

              This simple Constitutional FACT you knowingly jumped over was clearly stated in SCOTUS decision in:
              United States Supreme Court OSBORN v. BANK OF U.S., (1824) No. 80
              Argued: Decided: March 19, 1824
              “A naturalized citizen is indeed made a citizen under an act of Congress, but the act does not proceed to give, to regulate, or to prescribe his capacities. He becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature, is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual. The constitution then takes him up, and, among other rights, extends to him the capacity of suing in the Courts of the United States, precisely under the same circumstances under which a native might sue. He is [22 U.S. 738, 828] distinguishable in nothing from a native citizen, except so far as the constitution makes the distinction. The law makes none.”

              Lastly, you once again, evaded my Constitution-based question on the construction of ‘common law:’ “Where is the Statutes at Large for U.S.C. Title 25-INDIANS.

              Even you can web search the definition on-line for ‘Statutes at Large’…but, doing so leaves your position with nothing to discuss

              1. 5.2.1.1.1.2.1

                Repeating your errors won’t change them into not being errors.

                1. You have yet to disprove any of my Constitution-based posts nor can you apparently answer by Constitution-based question: “Where is the Statutes at Large for U.S.C. Title 25-INDIANS? Nice try in evasion.

                2. I HAVE disproved your posts by showing that question is based on fallacy and your incorrect understanding of the Act of 1924.

                  This is the reference of my very first post here, welcoming back you (and your previously debunked view).

                  All that you are doing is the same retread that you did the very first time: run away from the counterpoints presented to you by blindly repeating your error and demanding an answer to a question that need not be answered.

                  As I have now on numerous occasions indicated to you, once you walk down the path and understand your error, you will see exactly why no answer to your question need be forthcoming.

  12. 4

    Mr. Gulliford sounds like the kind of person who would defend human trafficking.

    1. 4.1

      ?

      That a rather bald assertion, and would indicate – on its face – more about you than about Mr. Gulliford.

      Maybe, Bob, you might share a point or two about why you feel as you do.

    2. 4.2

      LOL, Redcutio ad Hitlerum. You know you have won the argument when ….

    3. 4.3

      Mr. Gulliford sounds like the kind of person who would defend human trafficking.

      No doubt. He probably already has. Heck, even slave owners are entitled to fancy lawyers!

      1. 4.3.1

        You think that they should NOT be entilted to lawyers (fancy or otherwise)…?

        Based on what? Your feelings?

        Should I remind you (again) of the line from Sir Thomas More?

        (Any attorney worth anything would not post as you post, Malcolm)

  13. 3

    Patent anomaly #6 (we up to 6 yet?) – The AIA PTAB construct creates a two tiered patent system – based on ownership. Violation of equal protection under the 13 and 14 Amendments. And yes, thank you Mohawks, for pointing out, yet again, another anomaly created by the PTAB abandonment of Hayburn’s case.

  14. 2

    This op-ed seems to me to attack a bunch of strawmen.

    #1 – Tribes Are Vilified For Following The Status Quo

    From the hysteria, you’d think the Tribe is the first to invoke sovereign immunity with IPRs. It is not. State universities are, and began successfully doing so before the Allergan deal.

    I can’t speak for “the hysteria,” but my sense is that states typically invoke sovereign immunity w/r/t their own patents, not patents they receive for the specific purpose of asserting sovereign immunity to shield them from IPRs. I wonder whether Mr. Gulliford (or anyone) is aware of any transaction with a state university similar to Allergan’s with the St. Regis Tribe, where the patentee tries to transfer nominal ownership to a state so that the state can invoke sovereign immunity to avoid the IPRs. This transaction is creative and (as far as I know) unique. Perhaps the Tribe is being vilified for responding rationally to economic incentives, but they’re neither (a) “following the status quo,” nor (b) as far as I know, just doing what state universities have always done.

    #2 – No One Gives Native Americans Credit

    The most recited narrative of the deal is that Allergan “rented” the Saint Regis Mohawk Tribe’s sovereign immunity. This point of view is based on racism at worse and paternalism at best. Most can’t fathom that an Indian tribe, itself no stranger to devastating property loss, could be sophisticated enough to appreciate how recent changes to the U.S. patent system have failed innovators, or to have done a deal to right such wrongs.

    These seems like a total non sequitur. The “rent” argument doesn’t imply anything about the Tribe’s sophistication or lack thereof. The point (as I understand it) is that the deal is designed to give Allergan the benefit of the Tribe’s sovereign immunity without Allergan relinquishing control over the patent and its associated money stream. Describing the deal that way is either accurate or it isn’t; it’s not an attack on the Tribe’s sophistication. I have no doubt that the Tribe is doing all of the sophisticated things Mr. Gulliford says it is; none of that is inconsistent with the description of the Allergan transaction as “renting” the Tribe’s sovereign immunity. Good for them for monetizing it, I suppose.

    #3 – PR Is Obfuscating A Conversation That Needs To Happen

    Created in 2011 in response to “patent troll” problems, IPRs were supposed to give companies a cheaper way to challenge the validity of patents they are accused of infringing. But by implementing rules that strongly promote patent invalidity findings, IPRs inflicted significant pain for companies heavily reliant on patents.

    Given these truths, one could make a compelling argument that the Board of any company reliant on patents should do whatever is necessary to avoid IPRs. Why shouldn’t companies fight back and do deals to avoid having their crown jewels invalidated?

    The answer is PR and political pressure to not do such deals.

    This is a decent argument that should be made more plainly. Whether intended or not, from the perspective of companies that rely on patents (life sciences, NPE/trolls), IPRs are an economic threat and the PTAB’s “death squad” moniker isn’t undeserved. Whatever intuitive reactions you might have to the idea of a pharma company renting a Tribe’s sovereign immunity to avoid IPRs, the lengths to which Allergan is willing to go should provoke some conversation about what’s wrong with the patent system and whether IPRs represent the pendulum swinging too far in the anti-patent direction. Tech companies might say that this conversation already happened ~7 years ago, but patentees might rightly point to this as a sign that another conversation needs to happen.

    1. 2.1

      +1
      You’ve summed up all of my qualms and addressed a few more. This is a pretty obvious case of an attorney sticking to his guns despite having no ammunition.

      1. 2.1.1

        And, he has no Constitutional authority for the whole notion of ‘tribal sovereignty!’

    2. 2.2

      IPRs are an economic threat

      LOLOLOLOLOLOLOLOLOLOLOLOL

      Any evidence for this hilarious assertion?

      1. 2.2.1

        Here’s a sentence fragment that captures a bit more context: from the perspective of companies that rely on patents (life sciences, NPE/trolls), IPRs are an economic threat

        Do you disagree?

        1. 2.2.1.1

          from the perspective of companies that rely on patents (life sciences, NPE/trolls), IPRs are an economic threat

          Do you disagree?

          It’s impossible not to disagree in the most abstract and banal sense of the proposition, at least with regards to NPE/tr0 lls. But nobody cares about NPE/tr0lls except for the NPE/tr0lls themselves. A significant purpose of the IPRs was to “threaten” that class of patent owners, and preferably to threaten them into extinction.

          As for “life sciences”, it may have escaped your attention but patenting in the “life sciences” is rolling right along. There’s no good reason to be “threatened” by IPRs if your innovation and your patents are solid. You could equally say that the FDA is an “economic threat” to companies making/distributing unsafe drugs. Well, I suppose so. All regulations are “threats” to those who benefit primarily from activities on the wrong side of those regulations. What of it?

    3. 2.3

      Ironically, after re-reading this article, readership/commentators are jumping over a U.S. Constitutional absurdity!!! As of the passage of the Indian Citizenship Act of 1924, they are U.S./State citizens with “Indian ancestry/race” entitled to no more and no less than every other non-Indian U.S./State citizen.
      Our Constitution makes for no provisions for:
      1. Sovereign Indian nations
      2. Treaties with constituency
      3. Indian law
      4. Indian reservations

      No one has answered this simple question…a question so simple, it is hard:
      “Where is the proclamation ratified by the voters of the United States to amend our Constitution to make the health, welfare, safety and benefits of a select group of U.S./State citizens distinguishable because of their “Indian ancestry/race?”

        1. 2.3.1.1

          Don’t see any answer to my question from you…just Ad Hominem

          1. 2.3.1.1.1

            to my question

            Your question remains a bogus question.

            And the reason for that HAS been put in front of your eyes.

            Try opening your eyes, mr. jones.

            Even here, 6 is schooling you. NONE of these are new points: every one of these have been presented to you previously. Thus your whine here is off the mark, as the ad hominem that you may see is justified ad hominem for one such as yourself who steadfastly refuses to understand how actual law works.

            1. 2.3.1.1.1.1

              Sir Winston Churchill provides the perfect reply to someone who cannot read our Constitution regarding one’s U.S./State citizenship:

              “The truth is incontrovertible. Malice may attack it, ignorance may deride it, but in the end, there it is.”

              1. 2.3.1.1.1.1.1

                Your quote is attempted to be applied to the wrong person, as “there it is” is exactly what I have been telling you.

                You are the side with malice and ignorance. Why your question remains a bogus question has been pointed out to you. You are choosing ignorance as the tool to hold onto your malice.

                I know not why.
                I care not why.

                Your “reading” is – and remains – in error.

                1. For someone who is unable to even “GOOGLE” to get a definition of what a “Statute at Large” as your replies clearly show affirms Churchill’s assessment…although it is increasingly difficult to tell which of Churchill’s descriptions apply to you…unless, of course, you are a politician functioning as a troll in which case both of Churchill’s description apply. Absent you providing the Statutes at Large for U.S.C. Title 25-INDIANS, Churchill remains the answer to you.

                2. Anon: Considering you are unable to answer my simple Constitution-based question claiming it is ‘bogus,’ then you also lack any understanding of what Statutes at Large are resulting in your continued lacking display of any knowledge of our Constitution. Your repetitive ‘spin’ that this question is bogus eliminates any further meaningful conversation with you on a U.S. Constitution level:
                  “Where is the Statutes at Large for U.S.C. Title 25-INDIANS?”

                3. Your questions remain bogus.

                  And for the reasons given to you.

                  Those reasons have not changed.

                  Your lack of understanding has not changed.

                  Your repeating the same thing that has been shown to be bogus does not change the bogus nature of what you are repeating.

                  Calling the items that have called YOU out as somehow being that of a politician or of a tr011 (neither of which fit) does not change the facts presented to you, the fact that you have not addressed these facts, and the fact that repeating a bogus question does not change that question from being a bogus question.

                  All that YOU are doing is clenching tight your eyes and riding the same merry go round – as the last time you ventured forth with your bogus question.

    4. 2.4

      the lengths to which Allergan is willing to go should provoke some conversation about what’s wrong with the patent system

      Good grief.

      How about a conversation about “what’s wrong with the patent bar”?

      Oh right: sensitive fee-fees and all that. It would soooo imprudent to have that conversation.

      1. 2.4.1

        It is not imprudent to have that conversation.

        It is that YOUR posts along that line are NOT a conversation.

        Your posts along that line are nothing but screed and evidence of your cognitive dissonance when it comes to personal property and – gasp – making money.

        Malcolm, you really should get into a different line of work.

      2. 2.4.2

        How about a conversation about “what’s wrong with the patent bar”?

        That would be an equally worthy but probably much longer conversation.

    5. 2.5

      As of the passage of the Indian Citizenship Act of 1924, this whole “Indian thing” is a plain fraud upon our Constitution!

  15. 1

    I think what bothers people is when they see a double standard: one for most patentees, and one for patentees who are states and tribes. Insofar as that double standard could be erased vis-a-vis states, it won’t be, because that would require a constitutional amendment, and that would require 3/4 of the states to consent to being treating like normal people. So you don’t hear so much grumbling about states being exempt from IPRs, because state sovereign immunity isn’t going to change.

    But to make tribes subject to IPRs? No constitutional amendment is needed, and the tribes don’t have lobbying clout anywhere near that of Silicon Valley, so Congress can screw them on this matter like the USA has been screwing them since its inception. That’s why you hear people decrying the use of tribal sovereign immunity: because their complaining might lead to a change.

    Nevertheless, I agree with the author that the over-the-top reaction to the invocation of tribal sovereign immunity to avoid IPRs, in contrast to the (non-) reaction to the invocation of state sovereign immunity by states to the same end, is disconcerting, to put it mildly – and it constitutes a double-standard of its own.

    Personally, I applaud the creativity of SRM in offering to help patentees threatened by IPRs. Potential infringers still have recourse to the courts. I hope the Federal Circuit maintains the Tribe’s sovereign immunity in this case. If Congress wants to put the interests of Google ahead of those of tribes by abrogating that immunity in the context of IPRs, let it do so in broad daylight.

    [expecting some snarky, thoughtless comment from this blog’s long-time purveyor of snarky, thoughtless comments…]

    1. 1.1

      Speaking of double standards, there is also the morally corrupt double standard with regard to patentable aspects of medical products and services versus practically every other kind product and service having patentable aspects. This is a naked push for Statist altruism… whether individuals are holding on to the Marxist or religious variant. The Church of the Left (including those with or without Gods) does not recognize property rights in the realm of medical products and services.

      The brouhaha would NOT have occurred if the patent were directed at a controller for a video game console.

      1. 1.1.1

        For example, would a State owning a spectrum license to a radio station exempt it’s from an administrative court at FCC concerning FCC rules violations, or that the license was ‘wrongfully issued’ in the first instance? Not an expert, but would suspect that college radio stations are regulated, and not subject to 11th Amendment immunity by virtue of State ownership of the spectrum license. This is the path the ‘public rights’ doctrine is taking patents.

    2. 1.2

      I would not take to the bank that States still have 11th Amendment immunity from the PTAB Star Chamber court. Under the Oil States holding (discovery of the privy court for patents?) that patents are subject to the ‘public rights’ doctrine (i.e., patent’s are subject to a administrative regulatory scheme outside standard Constitutional conventions), why would the 11th Amendment provide any stronger reasoning than the 5th, 7th, and 13th Amendments and of course ‘separation of powers?’ to protect a patents from the King’s privy court? Strong argument that mere ownership of the US patent creates a waiver issue concerning the new privy court.

      1. 1.2.1

        Strong argument that mere ownership of the US patent creates a waiver issue concerning the new privy court.

        Agreed – that “implied waiver” is implied to ALL – changing the notion of patents as personal property rights (through the path of “Public Rights”) will – as necessary – continue to show wrinkle effects (and yet again shows that the throw-away dicta from Thomas is just that: throw away dicta).

        1. 1.2.1.1

          Yep, the Thomas dicta is not even internally consistent with the holding. IMHO, just a bone tossed out there, to reconcile the logical train wreck in the Oil States holding vis a vis the very existence of a claims court (at it’s core being based on a federal taking of property). I think that was anomaly #2 or #3.

          1. 1.2.1.1.1

            Agree (again) on the “not even internally consistent” angle.

            For the item TO BE internally consistent, Thomas would need to have elevated the dicta into his holding such that the same effect of the decision would have been reached.

            It is a sure sign of an (emasculated) placebo to note that HAD the reasoning offered in dicta been applied, that the decision itself would have necessarily gone the other way.

            There is zero justice in such a combination (holding one way, and dicta, if applied, the other way) – NOT at the Supreme Court level at which level the Court (as has it itself has made clear) can DO WHATEVER it wants to do (including not being consistent with its own past decisions – without expressly overruling those decisions – and even, without meaning to go too far off of the point here, to have the audacity to call out a prior decision as being most on point, and then turning around and rendering a decision entirely incompatible with that prior decision, as if nothing was amiss).

            1. 1.2.1.1.1.1

              Assuming I am correct about the alleged dicta you reference, why exactly can’t a franchise be property?

              1. 1.2.1.1.1.1.1

                NS II,

                Whether or not a Franchise is a property is a different question as to whether or not a franchise property is a personal property.

                N’est ce pas?

                1. How is that a question? If a franchise is property, it must be personal property. It isn’t real property. Are you using some special definition of “personal property”?

                2. How is that not a question?

                  I make up nothing special here / apparently you think that the only types of property are real property and personal property. That just does not fit with the notion of public rights. Therein lies your key to your enlightenment. I suggest that you find it yourself lest you think that whoever is trying to teach you is just making it up.

                3. If a franchise is property, it must be personal propert.

                  Yes. Franchises are personal property at common law. This is not even a controversial point. It is well established in the case law. Harvey v. Harvey, 224 Cal. App. 2d 555, 561 (1964) (“[M]oney has always been considered tangible personal property, as distinguished from intangibles such as franchises and choses in action”).

                4. Greg,

                  You searched and all that you found was some 1964 California district court quote that barely references something in passing (while clearly the intent of the case is completely different?

                  That is not compelling.

                5. Norris v. Norris, 731 S.W.2d 844, 845 (Mo. 1987) (“Personal property can be either tangible or intangible… [I]ntangible personal property is that which… is merely the representative or evidence of value, such as certificates of stock, bonds, promissory notes, and franchises,” emphases added).

                6. Accord, In re Estate of Berman, 187 N.E.2d 541, 544 (Ill. App. 1963); In re Estate of Macfarlane, 459 A.2d 1289, 1291 (Pa. 1983).

                7. Schmidt v. Indiana Dept. of Rev., 81 N.E.3d 705, 709 (Ind. 2017) (“Indiana Code § 6-3-2-2 defines the term ‘adjusted gross income derived from sources within Indiana’ as… income from stocks, bonds, notes, bank deposits, patents, copyrights, secret processes and formulas, good will, trademarks, trade brands, franchises, and other intangible personal property if the receipt from the intangible is attributable to Indiana…” emphasis added).

                8. Greg (and NS II),

                  I thought that this post on another thread is pertinent to the discussion here.

                  See link to patentlyo.com

                  In short (in case you do not want to follow the link), the difference between the new franchise (per Oil States) and the actual words of Congress (35 USC 261), is LESS in the designation of “franchise” and MORE in the mechanism of how that designation was delivered: Public Rights.

                  Public Rights and private personal rights are simply not the same things.

                  To focus overly on “franchise” then without noting the mechanism (and thus, the flavor) of Public Rights is to miss just why this WAS a significant change (and yes, that change is a re-writing) in a foundational aspect of patent law.

              2. 1.2.1.1.1.1.2

                Why are you so hung up on the language of franchise and the pretense the even a franchise is type of property right? Of course it. The holding of Oil States is that patents, apparently by revelation, were subject to the ‘public rights’ doctrine all along. And, therefore, a King’s privy court is a Constitutional means by which they can be administered. So yes, the King’s franchise is a form of property right, but fall from grace, and the King’s privy court can take it away. Best to teach your clients to genuflect and always be in the King’s good grace. That’s not what the revolution and subsequent ratification was about.

                1. Er, we have no Privy Council in this country, so whether or not such a body would be constitutional was not actually at issue in Oil States, and the constitutional supportability of such an arrangement was certainly not the holding of Oil States.

                  Oil States held that it is possible to assign the determination of the lawfulness of a grant to some entity other than an Art. III court. Even that not-an-Art.-III-court entity, however, must make its determination according to the law set forth in Title 35. Mere “inconvenience” to the crown is not a grounds for the not-an-Art.-III-court entity to invoke (as was the case for the Privy Council).

                2. Er, we have no Privy Council in this country, so…

                  Not so fast there Greg.

                  We DO have a Privy Council in this country.

                  Per the wiki:
                  A privy council is a body that advises the head of state of a nation, typically, but not always, in the context of a monarchic government. The word “privy” means “private” or “secret”; thus, a privy council was originally a committee of the monarch’s closest advisors to give confidential advice on state affairs.

                  See link to en.wikipedia.org

                  As noted – such are not always in the context of a monarchic government, and GIVEN that there is a deplorable lack of sunshine in the bowels of the USPTO – for example, just before SAWS was pulled, the government made the very public admission that SAWS was but one of MANY such “hidden” programs. Also, see that other blog for the not-too-distant series of exposes on the hidden actions of the PTAB, the various influences and off-the-books (in the shadows) machinations that exist for “confidential advice on state affairs” [notably, even the government’s attempts to DENY FOIA requests ring to that very exact same tune!]

                  I will agree with you that Oil States was not about that (the right questions were not asked there), but please, you will have to do better as to clench tight your eyes on the larger problems involved.

      2. 1.2.2

        I would not take to the bank that States still have 11th Amendment immunity from the PTAB…

        Agreed. In Upper Skagit Tribe v. Lundgren, 200 L. Ed. 2d 931 (U.S. 2017), the Supreme Court indicated that they are skeptical that sovereign immunity is a defense in proceedings in rem (such as disputes over patent validity). The Court refused to decide that precise point in this go round (they remanded back to the Washington Supreme Court), but signaled that this issue might be coming back to them after remand. If sovereign immunity really is inapplicable in proceedings in rem, then all of those universities that think that they have a get-out-of-PTAB-free card are in for a rude awakening.

        1. 1.2.2.1

          Not just universities (state universities, that is), but the Federal Government itself, n’cest pa?

    3. 1.3

      No such thing under our Constitution as “Indian tribal sovereignty!” It is a hoax foisted off on We, the People, by politicians-state and federal.

      1. 1.3.1

        “It is a hoax foisted off on We, the People, by politicians-state and federal.”

        Actually it’s just treaties which turned into statutes with special “foreign” (now domestic but partly still “separate” or “distinct”) nations of people. And as to the sovereignty they never seem to have given it up, thus it is still “organically” present as the supreme court noted. Our statutes just do/did them the favor of recognizing it rather than denying them such and breaking them up for good (complete genocide style).

        1. 1.3.1.1

          Nope. As of the passage of the Indian Citizenship Act of 1924, they are U.S./State citizens. Our Constitution makes for no provisions for ‘treaties’ with constituency and you have provided no Amendments to our Constitution to make your post true. Our Constitution makes for no provisions to make a select group of U.S./State citizens with “Indian ancestry/race” distinguishable from all other non-Indian U.S./State citizens absent an Amendment to do so…you have not provided such an Amendment.

          Here are two unbiased documents that debunk your post:
          1. link to lexrex.com
          The object of treaties is the regulation of intercourse with foreign nations, and is external.”
          An especially interesting piece of evidence supporting the conclusion that the Treaty Clause was intended and understood by the Framing and Ratifying Conventions not to authorize the President and Senate, by a treaty, either (a) to override the Constitution, in whole or in part, or (b) to make domestic law (as distinguished from governance of relations with foreign governments),
          [Section 52.] “Treaties are legislative acts. A treaty is a law of the land. It differs from other laws only as it must have the consent of a foreign nation, being but a contract with respect to that nation . . . 2. By the general power to make treaties, the Constitution must have intended to comprehend only those objects which are usually regulated by treaty, and cannot be otherwise regulated. 3. It must have meant to except out of these the rights reserved to the States; for surely the President and Senate cannot do by treaty what the whole Government is interdicted from doing in any way.”

          Another fallacious statement is that a treaty “can override the Constitution;” which defies historical truth, as we have seen. A related and most preposterous allegation is that a treaty “can cut across the rights given the people by the constitutional Bill of Rights”–than which nothing could be further from the truth, partly for two reasons: the Constitution does not authorize any such treaty and, secondly, the people are, of course, given their rights by God and not by themselves through their own creation: the Constitution (including its Bill of Rights, or Bill of Prohibitions, Amendments). The quoted statement is farcical.

          2. United States Supreme Court OSBORN v. BANK OF U.S., (1824) No. 80
          Argued: Decided: March 19, 1824
          “A naturalized citizen is indeed made a citizen under an act of Congress, but the act does not proceed to give, to regulate, or to prescribe his capacities. He becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature, is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual. The constitution then takes him up, and, among other rights, extends to him the capacity of suing in the Courts of the United States, precisely under the same circumstances under which a native might sue. He is [22 U.S. 738, 828] distinguishable in nothing from a native citizen, except so far as the constitution makes the distinction. The law makes none.”

          1. 1.3.1.1.1

            or abridge

            Hmmmm.

            Seems like you want to abridge something here…

            so far as respects the individual.

            Funny that – the tribe is not recognized as an individual – the tribe is recognized as a sovereign. Further, Osborn had nothing at all to do with any question of Indian nation sovereignty. Your “grasp” is inapposite for the point that you want to make.

            You seem to have very basic difficulties with understanding what the laws actually are, and you seem to have spent an inordinate amount of time convincing yourself of a rather peculiar and twisted “understanding.”

            The animus you display towards American Indians is tremendous. Above I indicated to another poster that the “point 2)” is weakly presented. However, with your rants, THAT point is much more directly in play, and YOU make that point (sadly) into a stronger point, as that point is presented.

            I do hope that YOU are the exception that proves the rule, but alas, I hold no misgivings over the nature of big o tree that exists.

            1. 1.3.1.1.1.1

              “The animus you display towards American Indians is tremendous.”

              He probably got legally screwed by tribal sovereignty back in the day somehow.

              1. 1.3.1.1.1.1.1

                Try reading our Constitution that this political-state and federal-fraud upon our Constitution with Title 25-INDIANS

            2. 1.3.1.1.1.2

              You clearly do not understand our Constitution even when Constitutional tenents and SCOUTS decisions are provided: As of the passage of the Indian Citizenship Act of 1924, they are U.S./State citizens! Period. You have yet to provide anything to amend the Constitution’s protection of such citizenship !

              Secondly, you clearly have no understanding of our Constitution’s protection of one’s U.S./State citizenship.

              Lastly, where is the proclamation ratified by the voters of the United States to amend our Constitution to make the health, welfare, safety and benefits of a select group of U.S./State citizens distinguishable because of their “Indian ancestry/race?”
              The balance of your post lacks any Constitutional support.

              The animus you exhibit towards our Constitution is deplorable and is more suitable of someone who is not a U.S./State citizen; and, your Ad Hominem is all you have.

              Answer this question: “Where is the Statutes at Large for U.S.C. Title 25-INDIANS? If you cannot or will not answer that question, you have nothing to offer in this discussion.

              1. 1.3.1.1.1.2.1

                “Citizenship Act of 1924, they are U.S./State citizens! Period. ”

                There’s no reasons they can’t be dual citizens. And no, the Citizenship act, that makes them citizens, garunteed (where before I believe only some of them had citizenship), did not obliterate their sovereignty.

                “You have yet to provide anything to amend the Constitution’s protection of such citizenship !”

                Um, I don’t need to. Their citizenship in the US is protected. And there are lawls protecting their sovereignty as a nation as well. In addition to.

                Why is this hard for you? They get sovereignty on top of their US citizenship, or US citizenship on top of their sovereignty. They get dual benefits. It’s kind of bs, but after taking all of Merica from them, I think congress was feeling generous.

            3. 1.3.1.1.1.3

              Clearly, you missed the entire point of Osborn’s explicit definition of one’s U.S./State citizenship…once achieved, politicians-state and federal-cannot ‘…enlarge or abridge…’ it absent an Amendment to do so…ergo, Title 25-INDIANS does not exist! If you believe that Title 25-INDIANS is good common law, provide the Statutes at Large for it!

              1. 1.3.1.1.1.3.1

                “Clearly, you missed the entire point of Osborn’s explicit definition of one’s U.S./State citizenship…once achieved, politicians-state and federal-cannot ‘…enlarge or abridge…’ ”

                Their sovereignty is not an enlargement (or abridgement) of their citizenship ta rd. They get both, separately.

          2. 1.3.1.1.2

            “Nope. As of the passage of the Indian Citizenship Act of 1924, they are U.S./State citizens.”

            That’s not what ur gubmit says bruh.

            1. 1.3.1.1.2.1

              That is what our Constitution says.

              1. 1.3.1.1.2.1.1

                Mmmmm, according to you. Not according to the people that matter. You. do. not. matter. That’s why positions of power/importance are positions of power/importance. Like judges/justices/congresspeople.

                lulz.

          3. 1.3.1.1.3

            Also brosef I want to make sure you understand, I do understand your argument. The supreme court isn’t going to help you (it is currently the USSC’s interpretation of sovereignty of the tribes that you are fighting against), and the gubmit otherwise does as it wants in this spehere, so you have no recourse to “force” the gubmit to acknowledge your argument. Thus, your argument is as a practical matter irrelevant. And, even if a court did one day take your position, the congress would just overwhelmingly amend the constitution to avoid a huge PR disaster and thus make the same laws as we have today consitutional for you, should you ever become a victorious party in a lawlsuit where the courts forced your opinion on the gubmit as a whole.

            In short, you can “debunk” all posts/arguments/explanations from all comers all day forever but it won’t ever matter unless you have power in the gubmit. And you don’t.

            1. 1.3.1.1.3.1

              Clearly, you do not understand our Constitution. Nowhere in our Constitution have you provided any authority for politicians-state and federal-to pass U.S.C. Title 25-INDIANS in accordance with Constitutional sources. In short, Title 25-INDIANS does not exist nor does any common law-state or federal-flowing from it.

              Incidentally, Congress does not Amendment our Constitution…We, the People do. Your post: “the congress would just overwhelmingly amend the constitution to avoid a huge PR disaster” affirms you lack any understanding of our Constitution.

    4. 1.4

      Really!!! “Screwing the Indians” has no based since the passage of the Indian Citizenship Act of 1924. The current ‘un-accounted for hand out’ to 1.7-million enrolled tribal members is some $20-Billion taxpayer dollars each year that achieved what? Perpetual welfare?
      There is no such thing under our Constitution as ‘tribal sovereignty!’

      If you believe there is, provide the Constitutional amendment to make our post true!

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