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Tribal Immunity Cannot Be Asserted to Escape IPR Proceedings



Indian tribes ability to shield patents from review at the United States Patent and Trademark Office’s (“USPTO”) Patent Trial and Appeal Board (“PTAB”) took another blow at the Federal Circuit.  The Federal Circuit in a precedential decision, affirming the decision of the PTAB, held that tribal sovereign immunity cannot be asserted in inter partes review (“IPR”) proceedings before the PTAB.[1]

The Federal Circuit based the decision on two principles extrapolated from Supreme Court decisions.  First, the general proposition that “immunity does not apply where the federal government acting through an agency engages in an investigative action or pursues an adjudicatory agency action.”[2]  Second, the Supreme Court’s recognized distinction between adjudicative proceedings brought by a private party against a state, on the one hand, and federal agency-initiated enforcement proceedings, on the other.  According to the Federal Circuit, immunity may generally be invoked in the private party actions, but not in the federal agency-initiated enforcement proceedings.

The opinion allocates a majority of its analysis distinguishing IPR proceedings from a Federal Maritime Commission proceeding in which the Supreme Court held that state sovereign immunity could be invoked.  In FMC Maritime Comm’n v. S.C. State Ports Auth., 535 U.S. 743 (2002) (“FMC”), the Supreme Court decided that because the FMC proceedings had “overwhelming” similarities with civil litigation in federal court which made them “virtually indistinguishable,” that they were the “type of proceedings from which the Framers would have thought the States possessed immunity when they agreed to enter the Union.”[3]  The Federal Circuit, deeming the FMC decision as instructive to questions of tribal immunity, clung to the Supreme Court’s acknowledgement that there are certain federal agency-initiated actions to which the states could not invoke immunity.[4]

The Federal Circuit highlighted four differences between IPR proceedings and adjudicative proceedings brought by a private party before a federal agency like the one in FMC.  First, The Federal Circuit highlighted that the  Director of the USPTO has “broad discretion in whether to institute a review.”[5]  According to the Court, although the Director is “significantly constrained” in how he conducts IPR proceedings, the “complete discretion” whether or not to institute a proceeding “embraces the entire proceeding.”[6]  Thus it is the Director, a “politically accountable, federal official,” and not a private party who “ultimately decides whether to proceed against the sovereign.”[7]

Second, the “role of the parties” in an IPR suggests immunity does not apply.  In other words, the Director’s ability to continue an IPR proceeding or to participate in any appeals when a petitioner drops out “reinforces the view that IPR is an act by the agency in reconsidering its own grant of a public franchise.”[8]

Third, the procedures in an IPR, unlike FMC, do not mirror the Federal Rules of Civil Procedure (“FRCP”).  Unlike the proceedings in FMC and the FRCP, in an IPR proceeding, the petitioner cannot amend the petition (except for minor typographical or clerical errors), the patent owner can amend claims, there are less discovery options, and there is a difference in preliminary proceedings.[9]  These differences were enough for the Court to conclude that IPR proceedings “are both functionally and procedurally different from district court litigation.”[10]

Finally, the fact that the USPTO has authority to utilize other “more inquisitorial”  proceedings to review or reexamine patents, does not mean that an IPR proceeding is one in which Congress intended tribal immunity to apply.  “The mere existence of more inquisitorial proceedings in which immunity does not apply does not mean that immunity applies in a different type of proceeding before the same agency.”[11]

In short:

The Director’s important role as a gatekeeper and the [PTAB]’s authority to proceed in the absence of the parties convinces [the Federal Circuit] that the USPTO is acting as the United States in its role as a superior sovereign to reconsider a prior administrative grant and protect the public interest in keeping patent monopolies within their legitimate scope.[12]

It is unclear whether this saga is over, however, unless there is an appeal, it appears that the alleged scheme of transferring ownership of patents to Indian tribes won’t shield the patents from IPR proceedings.

[1] Saint Regis Mohawk Tribe, Allergan, Inc., v. Mylan Pharmaceuticals Inc., Teva Pharmaceuticals USA, Inc., Akorn, Inc. (Fed. Cir. 2018). (Download Opinion)

[2] Slip Op. at 5

[3] Id. at 6 (citing FMC at 756 and 759)

[4] The Federal Circuit explicitly stated that it was not deciding the applicability of state sovereign immunity in PTAB actions.

[5] Id. at 8

[6] Id.

[7] Id. at 9

[8] Id.

[9] Id. at 10

[10] Id.

[11] Id. at 11

[12] Id. (internal quotes omitted)



Dimitra (DMTR) Listed On Kucoin

Dear Dimitra Community, We have some fantastic news to share with you. Dimitra is excited to announce the listing of the $DMTR token on KuCoin, recognized as one of the world’s leading crypto currency exchanges. The exchange’s user base is global and it is considered to be one of the leading trading venues for emerging […]

The post Dimitra (DMTR) Listed On Kucoin appeared first on CryptoCoin.News.




Dear Dimitra Community,

We have some fantastic news to share with you. Dimitra is excited to announce the listing of the $DMTR token on KuCoin, recognized as one of the world’s leading crypto currency exchanges. The exchange’s user base is global and it is considered to be one of the leading trading venues for emerging and established altcoins.

KuCoin is the first exchange to list $DMTR. This listing, to be followed by other centralized and decentralized listings, will facilitate and accelerate Dimitra’s goal of democratizing agriculture technology for farmers globally.

The Dimitra $DMTR token will be available for deposit initially with the DMTR/USDT trading pair.

– Deposits will open at 11:00am UTC on September 21, 2021

– Trading will start at 09:00am UTC on September 22, 2021

All trading execution is done through the official website at or within the KuCoin Android and iOS apps

Dimitra is grateful and fortunate to experience the growth of such an active and loyal community! We are looking forward to continuing to grow together.

Check out KuCoin’s listing announcement here:

About Dimitra:

Dimitra (DMTR) is a blockchain platform that is democratizing the agricultural technology space for smallholder farmers globally. Dimitra provides access to the blockchain, machine learning, Internet of Things sensors, and Satellite Technology through a mobile platform that helps farmers globally increase their yield, reduce costs and mitigate risks. Current farming practices are not sustainable; creating an evolution of practices will contribute to solving some of today’s largest issues for farmers. Issues like poverty, hunger, global warming, carbon emissions, freshwater, and soil preservation are all impacted by the adoption of Dimitra. Dimitra’s platform provides utility by combining the crypto investment cycle with agricultural development practices within nations globally.

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MiamiCoin Could Free Residents Of Tax Burden, Says Mayor

Thanks to its recently launched cryptocurrency, Miami is exploring a new way to fund municipal expenditures. ICYMI my interview on MiamiCoin w/ @FoxBusiness ✅The revolutionary concept of @mineCityCoins ✅Understanding how it’s generated $5M+ for the City ✅How these benefits translate into a better quality of life for Miamians — Mayor Francis Suarez (@FrancisSuarez) September […]

The post MiamiCoin Could Free Residents Of Tax Burden, Says Mayor appeared first on CryptoCoin.News.




Thanks to its recently launched cryptocurrency, Miami is exploring a new way to fund municipal expenditures.

MiamiCoin earns 2,000 USD every 10 minutes for the city

In February, Miami mayor Francis Suarez made first advancements to transform the city into a cryptocurrency hub. His plans were further cemented when the municipal cryptocurrency MiamiCoin launched last month with 30% of all mined coins going directly to the city.

In a recent interview with Fox Business, Suarez confirmed that the city receives roughly 2,000 USD every 10 minutes though MiamiCoin. Annualized, this transfers to a revenue of over 100 million USD, although Suarez has been more careful, estimating a yearly revenue of 60 million USD. The money is earmarked for specific projects, such as funding for underprivileged communities, crypto education, and climate change mitigation.

Crypto could revolutionize government funding, says Francis Suarez

In his interview, Suarez stated that MiamiCoin could theoretically abolish Miami’s already low tax burden altogether:

It’s interesting because it’s not an involuntary tax and it’s not philanthropy. It’s something that is completely different and could revolutionize the way governments are funded in the future.

It is still a long way to go for that though. In 2015, the City of Miami recorded a total tax revenue of roughly 240 million USD. Yet, the move towards municipal coins is a very natural development.

Using cryptographic tokens as a funding vehicle for developing DeFi platforms and other decentralized applications is a tested method and has specially made great advancements over the last year. It should be only a matter of time until this method will be tried on a municipal, or even nationwide scale.

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AMC Entertainment Could Include Dogecoin as a Payment Option



Following confirmation that AMC would begin accepting Bitcoin, Ethereum, Bitcoin Cash, and Litecoin for online payment, the company’s CEO has asked the Dogecoin community if AMC should add the meme coin among the cryptocurrency options.

Almost 80% Want to Pay for a Movie Ticket With DOGE

Adam Aron, CEO of the world’s largest movie theater chain AMC Entertainment, conducted a poll via Twitter on Tuesday (September 21st, 2021) to check whether the company should accept DOGE payment. The poll, which ends on September 22nd, has garnered a lot of responses, most of them wanting AMC to include the meme crypto.

According to Aron, the Twitter survey came amid calls from members of the Dogecoin online community to add DOGE to the list of crypto options.

“I hear from many on my Twitter feed we should accept Dogecoin too. Do you think AMC should explore accepting Dogecoin?”

Before the latest development, the AMC CEO announced that the movie theater giant will accept Ethereum, Bitcoin Cash, and Litecoin by the end of 2021. This was after Aron previously revealed during an earnings call in August that customers would be able to pay for movie tickets and concessions online with bitcoin, also at the end of the year.

The poll has so far seen 110,000 votes, with 70% responding positively to the idea of DOGE payment, while 8% also agree but say they would not use the meme coin for payment. Meanwhile, 22% of the voters were not in support of the motion.


Growing Support for Dogecoin Payment

Aron’s survey comes as the cryptocurrency market is experiencing massive price dumps, along with the global financial markets, mostly tied to the Evergrande saga. Bitcoin, which traded at $48k over the weekend, dropped to as low as $40k, with the price of other altcoins also plummeting. However, there has been a slight recovery.

Dogecoin is currently the 10th largest crypto by market capitalization and reached an all-time high (ATH) of over $0.7 back in May. Now, though, it’s down to roughly $0.2.

If AMC Entertainment goes ahead to include the meme token among the list of accepted cryptocurrencies, the movie theater giant would become the latest company to support DOGE payments. Some others who have adopted Dogecoin include American basketball team Dallas Mavericks and Newegg.

Apart from AMC’s Adam Aron, Tesla’s CEO Elon Musk also carried out a similar poll for his followers. Although many of the respondents voted in favor of the electric vehicle manufacturer including DOGE among payment options, the company is yet to make it official.


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