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Intellectual Property Law

Notre Dame Law School

Notre Dame Law Review Reflection

2019

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Patent Litigators Playing Cowboys And Indians At The Ptab, Michael E. Benson May 2019

Patent Litigators Playing Cowboys And Indians At The Ptab, Michael E. Benson

Notre Dame Law Review Reflection

This Essay concerns a new frontier of crafty strategy to keep patents from review by the Patent Trial and Appeal Board (PTAB)—the invocation of tribal sovereign immunity to prevent the PTAB from obtaining (subject-matter) jurisdiction over the patent invalidity dispute.

Part I of this Essay provides background information about a current case in which the litigant has attempted to use tribal sovereign immunity in order to avoid an inter partes review (IPR) proceeding before the PTAB. Part II provides a brief summary of the current relevant law (tribal, patent, administrative, etc.) pertaining to tribal sovereign immunity in the context of …