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Supreme Court decision signals likely end to Allergan sovereign immunity gambit

April 15, 2019 8:59 PM UTC

A lower court's ruling that a sovereign entity cannot assert immunity to shield a patent from inter partes review (IPR) will stand, as the U.S. Supreme Court rejected a petition from Allergan and the Saint Regis Mohawk Tribe to review the ruling Monday. While SCOTUS's decision likely marks the end of the road for Allergan's attempt to circumvent Patent Trial and Appeal Board (PTAB) review, the high court could still weigh in on whether sovereign immunity could be asserted during civil patent litigation, if presented with a different case.

"This case was a poor vehicle for Supreme Court review," Jacob Sherkow, associate professor of law at the New York Law School, told BioCentury via email. "The agreement between the tribe and Allergan was particular and nuanced; it was forged in the midst of litigation; and it was asserted in the context of an administrative proceeding, not in federal court. That presented, I think, too many challenges for the Court to take a clean, tribal immunity-patent case." ...