Scott Weston serves as president of the Oglala Sioux Tribe. Photo by Indianz.Com (CC BY-NC-SA 4.0)
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Native Sun News Today: Oglala Sioux Tribe joins heated debate over drug patents




OST files legal brief on behalf of Mohawk Tribe

Sovereign immunity threatened by court ruling
By James Giago Davies
Native Sun News Correspondent
nativesunnews.today

RAPID CITY—Far across in the country, in upper New York State, the St. Regis Mohawk Tribe (Akwasasne) needed help, specifically to protect tribal sovereign immunity from being limited by an unfavorable court ruling. Enter the Oglala Sioux Tribe (OST), who graciously filed an amicus brief on their behalf, concerning the Akwasasne battle to maintain a profitable business relationship with Irish pharmaceutical giant, Allergan.

The brief was prepared by Oglala Tribal Attorney Mario Gonzalez. Dale T. White, General Counsel for the Akwasasne, said, “We thought the brief was an excellent brief. It covered all the points on the law we wanted it to cover.”

An Amicus brief is a legal document filed by an outside party with an interest in a given litigation, in this case, OST coming to the defense of a fellow tribe, and to the defense of sovereign immunity. A good amicus brief contains expert, often perception altering information, that the court would do well to consider.

White said that many of the legal minds involved with the case were extremely impressed by the Gonzalez generated brief: “It is very heartening that another tribe is seeing what we are doing is exercising our sovereignty.”

The dispute is over patents, specifically patents held by the tribe in a cooperative relationship with Allergan. A press release from OST explains: “Although the Tribe owns the Akwesasne Mohawk Casino, it has strived to find new ways to bring in more revenue to provide services for its tribal members.  

“One of the Tribe’s economic diversification strategies is to enter into commercial contracts with corporations to acquire patents and then license those patents back to the corporations to achieve a stream of royalty income for the tribe, in return for the tribe's promise to assert its sovereign immunity to bar administrative petitions for inter partes review (IPR) of the patents before the Patent Trial and Appeal Board (PTAB).  In 2016, the Tribe entered into such a contract with the Allergan Corporation for its product ‘Restatsis,’ a $1.5 billion dry-eye drug.”

  “According to a Sept. 8, 2017 the New York Times article, the Tribe has ‘an annual budget of $50 million,’ the [Allergan] deal offers the promise of a new revenue stream [$15 million in annual royalties as long as the patents remain valid] that would bring in income beyond that of a casino the tribe runs near the reservation.”

White said, like the Oglala, the Akwesasne struggle to meet their budget: “We are in a remote area where we don’t have a big urban population; we need the revenue, in that way we are in a similar situation (to OST).”

Oglala Sioux Tribal President, Troy “Scott” Weston, stated that, “The Oglala Sioux Tribe’s support for the Saint Regis Mohawk Tribe by filing the amicus brief is the right thing to do. If state universities can raise sovereign immunity as a defense in IPR patent cases, Indian tribes should be allowed to do the same thing.  It is up to Congress and not the courts to establish policy in such matters.”  

An inter partes review (IPR), is “a trial proceeding conducted at the Board to review the patentability of one or more claims in a patent only on a ground that could be raised under §§ 102 or 103, and only on the basis of prior art consisting of patents or printed publications.”

Meaning, if the IPR goes bad, a tribe could lose a profitable relationship with a corporation.

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OST files legal brief on behalf of Mohawk Tribe
James Giago Davies is an enrolled member of the Oglala Lakota tribe. He can be reached at skindiesel@msn.com

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