Appeals Court Rejects Sketchy Plan To Pretend To Sell Patents To Native American Nation To Avoid Scrutiny
from the sovereign-assholery dept
Some ethically sketchy patent lawyers thought they had come up with a brilliant scam to avoid having awful patents scrutinized by the special review board created by Congress within the Patent Office -- a process known as "inter partes review" or IPR. This Patent and Trademark Appeals Board (PTAB) has been a useful tool in going back and reversing the mistakes made by patent examiners in letting through bad patents. However, back in September, we wrote about a fairly devious plan by the lawyers from the law firm of Shore Chan DePumpo to help their clients avoid a PTAB review. The situation began with a PTAB ruling back in early 2017 in a review of a patent held by the University of Florida. The University claimed sovereign immunity exempted it from the whole PTAB process under the 11th Amendment (universities claiming sovereign immunity in patent cases goes way back) and the PTAB agreed it had no jurisdiction.
Sensing an opportunity, the lawyers at Shore Chan DePumpo worked out a neat little scheme in which a pharmaceutical company would "sell" its patents to a Native American nation (in this case, the St. Regis Mohawk Tribe). The "sale" was in name only. The pharmaceutical companies retained not just an exclusive license to the patents, but basically all other rights as well. The only thing St. Regis got was a nice little income stream in exchange for having its sovereign status used to shield the pharma companies' patents from scrutiny before the PTAB.
I'm sure it seemed like a good idea to someone at the time, but it has been an utter failure. In October, the district court made it clear that this was a scam it didn't intend to allow to go forward. Then, in February, the PTAB itself denied the tribe's motion, pointing out that the PTAB wasn't stupid and totally understood the scam being played:
Upon consideration of the record, and for the reasons discussed below, we determine the Tribe has not established that the doctrine of tribal sovereign immunity should be applied to these proceedings. Furthermore, we determine that these proceedings can continue even without the Tribe's participation in view of Allergan's retained ownership interests in the challenged patents. The Tribe's Motion is therefore denied.
And now, just to add one more nail to the coffin of this terrible idea, the Federal Circuit, which traditionally is happy to rubber stamp any scam to keep patent owners happy, has rejected this plan as well. The CAFC ruling doesn't call out this procedure as a scam, but rather focuses in on the procedural questions of whether or not the IPR process is akin to an agency enforcement action (which would not be blocked by sovereign immunity) v. a civil lawsuit (which would be). It goes through a number of factors and decides that it's more of an agency action, and thus the tribe (acting as a front for the pharma companies) can't claim sovereign immunity and avoid having the Patent Office review its patents.
I guess the lawyers at Shore Chan DePumpo will just have to go back to sending frivolous takedown notices to bloggers who criticize the firm...
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Filed Under: cafc, federal circuit, inter partes review, ipr, mohawk nation, patents, ptab, sham transactions, sovereign immunity, st. regis mohawk tribe, uspto
Companies: allergan, mylan
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CAFC
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Re: CAFC
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They are immune to legal findings & laws, so why are they able to get the benefits but none of the checks & balances?
Some one with sovereign immunity could get a patent issued on how the government works (don't even try to say that couldn't happen... ROUNDED RECTANGLES... ROUNDED RECTANGLES) & then enforce it demanding payments and not have to worry about the patent being declared invalid, b/c they can't be sued.
If you want the upsides, you need to take the downsides.
The entire realm of IP is completely screwed up, we still have the rocket docket saying that patents on cassette tapes somehow cover all of the internet. Patents are issued on unpatentable things b/c on the internet is stapled to the application.
We needed reform, now more than ever but IP is this sacred cow that shall not be touched... no matter what.
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We needed reform, now more than ever but IP is this sacred cow that shall not be touched... no matter what.
Not exactly, the ones making money from it are all for it being ratcheted up(again, and again, and again), it's just any possible decrease that they object to.
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If truly soverign, they can grant their own patents. But don't expect to enforce them in the USA.
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DePumpo and Dumpo?
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Patent States' rights should be two-way street
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Re: Patent States' rights should be two-way street
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All or nothing
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The Indian tribe play probably seemed legally safer than setting up an offshore trust in some Caribbean island that would own the company's intellectual property in Prenda-like fashion.
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Why the Animus?
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Re: Why the Animus?
The system is designed to deal with that, and it does so, very expensively
FTFY
But to respond, there are multiple reasons that people may not like the current system and the lawyers which operate it.
The system does deal with this kind of thing...as long as both parties have the money to do so. If one party does not, then the system does not deal well at all.
A corollary to (1), but some people may look at this from other perspectives and decide that this is inefficient (in the economic sense) or otherwise a waste of resources (in a sociopolitical sense), and something should be done about that.
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Re: Re: Why the Animus?
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Animus was on my word of the day calendar too bro!
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Re: Animus was on my word of the day calendar too bro!
Sorry, I had to.
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Re: Why the Animus?
Or put your money where your mouth is and set up a fund for Paul Hansmeier's freedom.
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And I bet you suck off pantomime dames.
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Re: Re: Re: Why the Animus?
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Re: Why the Animus?
????
The lawyer laid out the reasons Mike believes Shiva didn't "invent" email, and also claimed that what Mike said was "opinion based on disclosed facts". The former has everything to do with Shiva, and the latter is a standard defamation defense that doesn't even come close to getting "near the edge".
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Re: Re: Why the Animus?
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Re: Re: Re: Re: Why the Animus?
However, there is a legal difference between "it is my opinion that you are a liar and a fraud" versus "due to X, Y, and Z you are a liar and a fraud" where X, Y and Z are publicly available pieces of knowledge which are true.
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Re: Re: Re: Re: Why the Animus?
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Re: Re: Re: Why the Animus?
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Re: Re: Re: Why the Animus?
Mike said "because of X, Y and Z Shiva is a fraud and liar". X, Y and Z are true. Because of that, him calling Shiva a fraud and liar are opinions based on disclosed facts, which are not something a court will hold a trial over. You might not think that's fair, but that's the way that U.S. defamation law currently works.
To go into a bit more detail about "opinions based on disclosed facts": if Mike hadn't written "because of X, Y and Z Shiv is a liar/fraud" he had written only "Shiva is a fraud/liar" without providing any reasons, a reader might think that Mike has access to information that the reader doesn't have access to, and thus give weight to Mike's statement that it doesn't deserve; that sort of thing can go to court. Or if Mike had written "due to private conversations I've had with Shiva I believe him to be a fraud/liar", but Shiva denied that those conversations took place, that's something a jury can judge. However, what Mike actually wrote was "due to X, Y and Z Shiva is a fraud/liar". X, Y and Z are publicly available knowledge. Anyone who reads what Mike wrote can judge for themselves if "X, Y and Z make Shiva a fraud/liar" is a logical statement. And since the reading public can judge for themselves, based on publicly available knowledge, if Mike's statement is logical or not, there's no need for a jury to do so.
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Whether "X, Y and Z make Shiva a fraud/liar" is logical or not is a question for a jury? According to 1st amendment lawyer Ken White (Popehat) it is not a matter for a jury. I'm going to trust his expertise over that of some random person on the Internet.
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Of course it's possible. That doesn't make a bit of difference to what U.S. defamation law currently IS. If you're talking about what the law should be, I don't think honest differences of opinion means that a jury should get to decide the logical or illogic of statements like "due to X, Y and Z John Doe is a liar/fraud", where X, Y and Z are all publicly available true information.
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Having read some of Shiva's statements, I think that he's deluded himself into believing his claim that he invented email. But that has nothing to do with the merits of the lawsuit he filed against Techdirt, or whether or not Mike's lawyers mislead the judge.
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If they do so, then there's no way that either conclusion could be defamatory. After all, it's just someone's opinion, and opinions aren't defamatory.
Maybe that's just your opinion. Others may disagree. Still not defamation.
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If he lost any book sales, business deals or such, it's going to be because people were convinced that he didn't invent email, since that's his entire claim to fame. No one is going think he's skilled with technology or a good business partner merely because he *believes he invented email.
1) As noted above, U.S. defamation law doesn't work that way when it comes to opinions based on disclosed facts.
2) About the only way that one could prove Shiva doesn't believe what he's saying is if he had been stupid enough to write someone an email admitting to it.
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It's why Hamilton lamented the demise of John Steele.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why the Animus?
If you go back in time a little, you probably remember how vile and disgusting the commenting here was, very sexual with a lot of feces used as argument. Why not take the side of the little guy who is getting picked on by the mob? It seems very American to me, and many of the most radical posters here are not American at all, their are socialist lunatics that believe in a “perfect” government as the solution to all human ills (you know who you are). Anyway, thank you again for being a sane voice amidst the angry and rhetorically violet mob of Techdirt. You seem open to rational argument and it is refreshing to see that here amidst the chaos and howling.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why the Animus?
There is a socialist leaning group here, and the opinion that with a perfect government, there would be no crime and maybe no need for money, seems to have broad based acceptance. With that in mind, in that (imagined) society, we would need no police (no crime) and everyone would have happy peaceful crime-free lives and (presumably) easily share the great wealth of the country around them. Towards that end, if you are just “quiet” and go along with the mob then the government will guarantee your “safe space” and shield from difficult questions and silence any dissenting voices on your behalf so you can have a nice quiet safe life.
To an American, this whole story sounds like a children’s story, and is flawed in it’s fundamental assumptions, that is, that life should be safe and easy and unchallenging. Americans believe the purpose of life is to serve others, and towards that end, we offer the ultimate challenge to each and every individual: Serve others, Follow the Rules, and you can become Fabulously Wealthy. Everybody that wants to. How to do that? It’s tough, it’s not safe, it’s difficult and dangerous, but has a fabulous payoff. You can be the next Donald Trump, literally. That’s the bargain when you are an American. That is not the bargain when you are a Socialist.
These are two fundamentally different and completely incompatible world views, the Socialist view and the American view. To the Socialists, Americans look chaotic and random and their success seems unfair and unjust and difficult to comprehend. The same could be true of children, who often find difficult concepts beyond their grasp. To Americans, Socialists look like children and act like children. Both have a view of truth, depending on where in the spectrum you are regarding “enlightened self interest”.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why the Animus?
There is a socialist leaning group here, and the opinion that with a perfect government, there would be no crime and maybe no need for money, seems to have broad based acceptance. With that in mind, in that (imagined) society, we would need no police (no crime) and everyone would have happy peaceful crime-free lives and (presumably) easily share the great wealth of the country around them. Towards that end, if you are just “quiet” and go along with the mob then the government will guarantee your “safe space” and shield from difficult questions and silence any dissenting voices on your behalf so you can have a nice quiet safe life.
The right-wing voluntarian anarcho-capitalist version is just as childish.
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Re: Why the Animus?
You're missing something very fundamental here, and you've repeated your error several times in this thread. If you sue me for defamation, the burden is not on me to prove that my statement is true--it's on you to prove that it's false. The burden is also on you to prove that I was at least negligent in making the false statement. If you're a public figure, as Shiva is, the burden is on you to prove that I lied--that I made my false statement knowing it was false, or with reckless disregard of its truth. Only once you meet that burden (as well as the burden of showing other points that aren't in dispute in the Shiva case) do I need to prove anything.
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Re: Re: Why the Animus?
To add to this: "X is a liar" is necessarily (legally) a statement of opinion--nobody can know what X thinks or knows, so nobody can say with complete certainty that X knows what he's saying is false (this, incidentally, is what makes it very hard for a public figure plaintiff to win a defamation case). The statement itself is either true or false, but nobody making the statement can know which it is, and anyone hearing the speaker would know that, so it's (legally) an opinion.
"X is a fraud" is also a statement of opinion, as it consists of two statements of opinion joined together: (1) that X is a liar (see above), and (2) that X is lying to further his own (typically financial) interests. The second, once again, goes to X's thought process, so it's necessarily a statement of opinion. Neither of these is actionable as defamation.
So:
"Shiva did not invent email." This is a claim of fact (and I think the trial court erred in finding this to be a matter of opinion), and is sufficiently well-established as to be beyond reasonable dispute.
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Re: Re: Re: Why the Animus?
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Re: Re: Re: Re: Re: Why the Animus?
If you accept the lemma regarding Americanism and the idea that anyone can get rich in America (which has been proven countless times), then you understand why Techdirt looks so wrong in this case. Shiva looks American, hard working, educated, opinionated, passionate, ambitious, kind of full of himself (that’s American) and willing to take risks (he is running for office). When Americans see this, they understand they are seeing something admirable, not deplorable. Shiva looks American. He looks worth defending, at least against ridiculous attacks from mobs.
Techdirt does not look American. Censorship is not American. Mob rule is not American. Profanity and disgusting sexual comments are not American tools of debate in normal American society. The comments about Shiva look unhinged.
I fully expect that if this case ever gets in front of an American jury, Techdirt will lose, because Americans will stick up for other people they see as Americans. Shiva looks American. Mike, especially when posing with the criminal traitor pardoned by Obama, does not look American at all. Leigh is not American not does he sound or act like one.
Shiva is ambitious, educated, hard working, self-loving (like POTUS) and already somewhat successful. He has a reason for what he is doing, he is following the American path to fame and riches. What in the heck is Techdirt accomplishing by condemning him publicly? Techdirt knows the “truth”? That seems unlikely. Shiva’s agenda is obvious and respectable (even if he is a little over-the-top). What is Techdirt’s agenda? To be the arbiters of “truth”? Or is it to try to destroy American values and American culture in favor of another?
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Re: Re: Re: Re: Why the Animus?
Shiva has been given more than a fair shake in this forum. His claim to have invented email is false. This is not up for serious discussion--all the relevant standards and features had been published long before he wrote his program. His persistence in claiming otherwise in the face of all the contrary evidence means that he's either a liar or dangerously mentally ill (I lean toward "liar", observing how he repeatedly shifts his own unique and bizarre definition of "email", which shows he knows he's wrong). His use of that lie as part of his personal brand means he's a fraud.
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Re: Re: Re: Re: Re: Why the Animus?
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Re: Re: Re: Re: Re: Re: Why the Animus?
Meanwhile, you're doing exactly what you accuse me of, in that you're passing judgment on someone you don't even know. Perhaps you could consider that, rather than accepting mob rule, I've reached a conclusion after reviewing the evidence.
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Re: Re: Re: Re: Re: Re: Why the Animus?
You’ve just spent hours and about 30000 words defending that rumpled foreskin of a man. So yeah I changed my mind. This is why you are a liar and a fraud.
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Re: Re: Re: Re: Re: Re: Re: Why the Animus?
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Then (1) you disagree with Mike and his defense team and (2) you believe that it should be up to our legal system to determine the definition of "email".
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Didn't take long for you to devolve back to replying to yourself either.
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Microsoft operating system as a service
https://www.computerworld.com/article/3293429/microsoft-windows/with-daas-windows-coming-say-good bye-to-your-pc-as-you-know-it.html
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Re: Microsoft operating system as a service
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Re:
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Info
It is great to see that some people still put in an effort into managing their websites.
https://www.telldunkin.me
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