The Lack of Patent Awards for Native American Inventors
In the past, some Native American inventors have been disenfranchised by the patent system due to Tribal sovereign immunity. This situation has gotten even worse, as one company, Allergan, sold a patent to the St. Regis Mohawk Tribe, supposedly to avoid the Patent Trial and Appeals Board. While Native Americans have historically had their property taken by the United States government, it is good to see that they are rescuing other Native American inventors from the same unfair treatment.
Tribal sovereign immunity
For example, a tribe can prevent an infringer from filing a declaratory judgment in a patent infringement suit against a native American inventor’s technology, known as a “DJ Action.” This will force the infringer to abandon any claims in the patent and begin a new lawsuit. Another restriction imposed by tribal sovereign immunity is that the infringer cannot maintain a petition for inter partes review, post-grant review, or covered business method review.
In the Hans case, the Supreme Court applied the principle of sovereign immunity to cure the anomaly of the Eleventh Amendment. The Court never considered congressional abrogation of immunity in this case, and the question was never before the Court until the reversal of the patent-holder in Union Gas. The Court held in this case that the immunity recognized in Hans had no constitutional status because it was subject to congressional abrogation.
The Supreme Court also noted that ancillary attacks against a sovereign are barred by sovereign immunity. Moreover, it was argued in Principality of Monaco v. Mississippi that sovereign immunity was first established during the reign of Henry IV. That is a strong argument, but Holmes’s reasoning should be considered when considering this issue. In the end, a sovereign’s immunity is not enough to block a patent award.
A different case involves a federal court in Florida. In Ex parte Young, the state has not consented to the suit, and the Supreme Court has upheld this ruling. The Florida Supreme Court held that federal courts are not required to grant state sovereign immunity to Indian tribes. It has now ruled that tribal sovereign immunity does not apply to state suits brought against the governor of a state.
Underrepresentation of native american inventors in the patent system
The Underrepresentation of Native American Inventors in the Patent System is a real problem and can be solved by changing the way patents are awarded. The patent system has long been biased against Native Americans, particularly women. While it is true that African American children have higher rates of patents than other racial groups, those numbers are still unacceptably low. In fact, according to a study by the Washington Center for Equitable Growth, 51 percent of Asian Americans have a bachelor’s degree, compared to just 24 percent of whites. And this figure does not include the subgroups, with rates ranging from 75 percent for Taiwanese to 22 percent for native Americans.
One study found that only 12-13% of American inventors are female. Further, only 13 percent of those completing college degrees were women. The lack of diversity in the patent system has impacted the creation of jobs, entrepreneurship, economic growth, and global leadership in innovation. Closing this gap would quadruple the number of American inventors and increase the nation’s gross domestic product by nearly $1 trillion a year.
In addition to the lack of native American inventors in the patent system, other factors that contribute to the underrepresentation of Native Americans include the historical context of the inventions. The number of patents filed by Black inventors sank precipitously after 1900. Furthermore, lynchings and Jim Crow laws created a hostile environment for African American inventors and their ideas. Cook’s study has shown that the decline in patenting Black inventors is related to race riots. Moreover, segregated patent attorneys and business districts further made the job difficult for Black inventors.
This underrepresentation is also due to the disparity between the socioeconomic status of the applicant and the patent-seeking culture. While this disparity in the patent-granting process can be attributed to a wide range of factors, including a higher abandonment rate, differences in the types of patents sought, and implicit bias, it is still a real problem and a cause for concern.
Benefits of working with an American Indian tribe
Working with an American Indian tribe can provide several advantages for patent owners. For starters, it can eliminate the threat of scorched-earth litigation tactics, which are often used by infringers to force patent owners to abandon their rights. Further, an American Indian tribe will not attempt to infringe on another tribal member’s patent. This can greatly limit the likelihood of a fair outcome, and it may also lead to licensing terms that are infringing on other patents.
In the recent transfer of Restasis patents to the Saint Regis Mohawk Tribe in New York State, Allergan has agreed to lease back its rights to the treatment for chronic dry eyes to the tribe. Restasis has already earned the Saint Regis Mohawk Tribe $15 million in sales. Allergan plans to lease back these rights to another company. However, critics question the value of the deal.
Tribal governments are sovereign, but their tax bases are different. While most states owe federal funding to tribal governments, tribes have a very different tax base. Federal funding runs their governments and helps support their native members. This funding is meant to empower the tribes to become economically self-sufficient. In fact, some of the tribes have already begun creating their own tribal businesses. By working with them, they can create jobs and increase their own revenue.
Is it a sham?
Native American tribes have historically faced many challenges and disadvantages as they sought to obtain a patent. In the process, they suffered loss of cultural identity and property rights. Yet by partnering with patent companies, Native American inventors are able to avoid some of these problems and enjoy a better chance of success in patent litigation. Here’s why. A Native American inventor can benefit from patent partnering if their patent is protected by an American Indian tribal law.
Tribal governments have also sought to preserve and protect the rights of inventors by acquiring patents. For example, in the case of Allergan, the company sold a patent to the St. Regis Mohawk Tribe, ostensibly avoiding the Patent Trial and Appeals Board. As a result, the American public has no basis to challenge the tribe’s transaction with the St. Regis Mohawk Tribe.
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