Native American Nation Shielded From Patent Infringement Claims

from the opportunity? dept

Wed, Feb 2nd 2011 6:06am — Mike Masnick

Joe Mullin points us to the news of how the Quapaw Tribe of Oklahoma succeeded in having a patent infringement case against the tribe dismissed, due to the sovereign immunity of the Native American nation. The ruling (embedded below) is pretty straightforward. Basically, it notes that sovereign immunity is well established for Native American nations and that there's nothing that appears to remove that immunity in this case. Of course, this leads to a variety of questions about whether or not the various tribal nations might sense an opportunity (as many did with casinos) to create "patent autonomous zones" directly within the borders of the United States. That might make for an interesting scenario...

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Filed Under: patents, quapaw, sovereign immunity

32 Comments

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Jason, 2 Feb 2011 @ 6:24am

Drugs
Can we get cheaper medication, please?
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NerdicusDamonus, 2 Feb 2011 @ 6:26am

Patents, Heck Copyrights as well
If they are immune from patent litigation what's the to stop them from just selling and hosting copyrighted material, they could itunes overnight.
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iamtheky (profile), 2 Feb 2011 @ 6:28am

Doesn't that ruling make it legal for all 50 sovereign States to ignore patents as well? As in state funded Seed Banks or Gene Research facilities should be able to do whatever the hell they want now without risk of federal litigation.
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Chris Ball (profile), 2 Feb 2011 @ 6:31am

Not that useful
Such zones probably wouldn't be that useful. Heck, they already exist in the form of the many countries that either don't have much in the way of patent laws or where it simply isn't work a patentee's time to get a patent there. The problem is that while you may be able to practice the invention in those places, you still can't sell the patented invention, or things made with the patented process, in places where there is patent protection. The fact that it might be in native territory instead of another country probably wouldn't make a huge difference.

There are still opportunities to take advantage of such patent free zones, and I'm surprised more businesses don't take advantage, but they aren't the panacea you might think.

Also, I wonder about the international and trade-related aspects of this decision. Sounds like it probably violates TRIPS and/or the Paris Convention. Not that the U.S. is exactly known for holding up its end of treaties. (Yes, I'm a bitter Canadian.)
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Jason, 2 Feb 2011 @ 6:34am

Re: Not that useful
Uh, FOB shipping point?
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Anonymous Coward, 2 Feb 2011 @ 6:40am

If they set up zones like this, the federal government would likely have to fence in the reserves and set up immigration check points, with ICE checking the materials to see if they are counterfeit or in violation of US law. It isn't a situation that would be tolerable for very long.
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Anonymous Coward, 2 Feb 2011 @ 6:55am

Setup the zone for a data center instead, o we're sorry, our data center is on tribal land and as such cant be searched, taken, inspected, or removed with out tribal authority.

I've asked the question as to why tribes don't use there sovereign immunity and the general response is 1: it costs to much, 2: there are many treaty's that prevent this, 3: Stuff like this happened many many years ago and the US government basically surrounded them cutting off access.

This is to say it cant be done, but to do it would require some major balls and some investors.
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Anonymous Coward, 2 Feb 2011 @ 7:11am

NativeAmericanBay.org anyone?
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Adam Wasserman (profile), 2 Feb 2011 @ 7:13am

Re: Native American Data Centres
Already being done.

Look up Continent8.
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Anonymous Coward, 2 Feb 2011 @ 7:30am

Re:
Fund it!
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Hephaestus (profile), 2 Feb 2011 @ 7:50am

Re: Drugs
I was thinking the same thing. Bring over an indian company and start producing pharma.
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Hephaestus (profile), 2 Feb 2011 @ 7:52am

Re:
Fear.The.NativeAmericanBay.org would be better ...
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Hephaestus (profile), 2 Feb 2011 @ 7:53am

Re:
Actually they might want to get their own TLD or ICE could confiscate the domain.
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Tom Landry (profile), 2 Feb 2011 @ 8:28am

Pharmaceutical companies must be shitting their pants about now.
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Anonymous Coward, 2 Feb 2011 @ 8:36am

Great place to start a university
I bet it wouldn't take much to lure professors who otherwise have to wait 20 years to further their research.
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pixelpusher220 (profile), 2 Feb 2011 @ 8:46am

Re:
it's ok, they have a pill for that now
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Mediere, 2 Feb 2011 @ 8:52am

Yop pharama companies are pretty much knee deep in .... right about now!
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Anonymous Coward, 2 Feb 2011 @ 9:12am

Re:
Many of your favorite poker sites run off an indian reserve in Canada. However, they are doing it in a legal grey zone that might one day vanish.
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Jimr (profile), 2 Feb 2011 @ 9:24am

Can I Patent the idea of setting up shop within the Native American Nation to provide services/goods that ignore US patents?
That way no business or persons outside the Native American Nation can use this loop hole with out first paying me a fee.
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The Groove Tiger (profile), 2 Feb 2011 @ 9:40am

Re:
Nation =/= State.
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Computer Bob, 2 Feb 2011 @ 10:11am

It has already happened.
There was a 60 Minutes story last year about an online gambling web site that already did this. The web site was accused of cheating in some of its games. And the Native American tribe wasn't cooperating with investigators about it when it was brought to their attention. So it will only get worse.
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Hephaestus (profile), 2 Feb 2011 @ 11:08am

Re: Great place to start a university
"I bet it wouldn't take much to lure professors who otherwise have to wait 20 years to further their research."

I was thinking this same thing. Patent Free Research Zones.
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Any Mouse (profile), 2 Feb 2011 @ 12:50pm

Re: Not that useful
Well, considering this decision has to do with treaties that are much older than TRIPS and/or the Paris Convention....
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Anonymous Coward, 2 Feb 2011 @ 1:06pm

Re:
"It isn't a situation that would be tolerable for very long."

For whom? The Indians would make out like gangbusters despite said enforcement. They deserve every penny.
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Anonymous Coward, 2 Feb 2011 @ 1:08pm

Re: Re:
As this story and the ones that buffer it prove, every inch of this planet is a legal grey zone.
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The Mighty Buzzard (profile), 2 Feb 2011 @ 4:56pm

Re: Not that useful
Indian* nations are not part of the US and not subject to any treaties it signs with others. Indian tribes could sell pirated music and movies, crack, and slaves all from the same store as long as it was on Indian land.

* That that you didn't see just now was the my Chickasaw+Choctaw ass giving the finger to everyone who kneejerked a correction to Native American. It's a completely retarded phrase since everyone born here is a native American and it's insulting that people think we're whiny-asses who want a PC name.
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t, 2 Feb 2011 @ 7:08pm

Re: Re: Not that useful
Mighty Buzzard just tell us how to refer to the people who were here in mass before the great European migration. Frankly I want to know how to differentiate between the "aborigines" and the immigrants from Mumbai. I seriously want to get it right so please inform.
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Mike, 3 Feb 2011 @ 6:25am

Not to overstate the results
There are certainly situations in which this could be exploited. However, it is unlikely that the pharma companies could exploit this.

If for no other reason that the sale, import or use of the drug may also be an infringement. In other words, great the tribe could avoid infringement of the "making" but would be hit downstream.

Other downstream players could also face patent infringement making such an "exploit" impossible.

Situations that it could benefit are those in which the tribe itself did part of a patented process -- sort of a S.I version of the RIM strategy of moving parts of the infringement outside the US. But that's not much of an exploit either since you can already arrange the relationship so as to avoid a unitary infringer (also necessary for patent infringement).
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Lola Jane Coleman, 16 Feb 2011 @ 12:01pm

Native Americans and patents
As I see americans took their land killed them put them on reservations with indian agents who didn't care about them now the reservations are their lands no one should mess with them leave them alone what is it you want Oklahoma and Arkansas you need sand for a secret project leave them alone
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Lola Jane Coleman, 16 Feb 2011 @ 12:11pm

Response to: Anonymous Coward on Feb 2nd, 2011 @ 6:40am
Look anonymous coward why don't you go find another cowardly thing to do and leave American Indians your government gave them that land so they wouldn't have to interact with them and could turn a blind eye to mistreatment now what you want to tell them what to do on their land get a life no one cares what cowards think
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Anonymous Coward, 19 Jun 2011 @ 4:59pm

to put it plainly believe it or not "Indians" do have something called integrity.

And I don't like being called "Indian" it's demeaning - the use is equivalent to the term Oriental is to Asians.

Native Americans not only applies to the Indigenous tribes of North America but to tribal nations in South America as well. The term Native Americans does mean born in North America...and if "we" are past those terms why do we still use the term African-American or Asian-American for those people who's ancestry tries them to those countries but have had generations born in the United States?
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Anonymous Coward, 19 Jun 2011 @ 5:01pm

Re:
Correction: The term Native Americans does NOT mean born in North America...
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