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Native American Tribe Sues Microsoft For Patent Violation

Tom Jowitt is a leading British tech freelance and long standing contributor to TechWeek Europe

Are ‘patent trolls’ now exploiting sovereign immunity for native Americans with latest lawsuits?

A Native American tribe is suing both Amazon and Microsoft for infringing patents it holds on data processing techniques.

The St. Regis Mohawk Tribe has sued Amazon (PDF) and Microsoft, after a company called SRC Labs (a co-plaintiff in the lawsuit) ‘transferred’ some of its patent to the tribe in August.

The move comes amid concerns that Native American tribes could potentially be used by so called ‘patent trolls’  or ‘Patent Assertion Entities’ as they are politely referred to in legal circles.

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Patent Immunity

So called patent trolls are often holding companies that do not produce goods or services, but which do hold a number of patents.

In 2013 the US government sought to rein in patent trolls, but with limited success.

And this is now reportedly the third time that a patent holding company has worked with a Native American tribe to file a lawsuit.

The reason for this is that Native American tribes in the United States occupy an odd legal space: they’re simultaneously US citizens and citizens of their tribes, which are considered separate nations. While Native Americans are protected under the same federal civil rights laws as other US citizens, the enforcement of these rights is complicated by this dual citizenship.

The Department of Justice thus has little authority to enforce the provisions of the Indian Civil Rights Act over tribal governments.

This also means that native tribes in the US possess sovereign immunity to patent challenges.

The concern is that these patent holding companies are therefore exploiting this legal protection to shield the patents from any patent review challenges.

Other Lawsuits

Last month, another patent-holding company Allergan gave the St. Regis Mohawk Tribe located in Northern New York, six patents covering its $1.5 billion eye medication Restasis.

The Allergan lawyers sought to shut down an inter partes review of the patents taking place at the Patent Trial and Appeals Board, reported CNBC, saying that the patents now benefit from tribal sovereign immunity.

This practice has been condemned by some members of the US Congress, and Senator Claire McCaskill is reportedly seeking to introduce legislation remove tribal sovereign immunity in this context.

It should be noted that Microsoft has been targeted by patent trolls before.

In 2012 for example, it was hit with a lawsuit by Portland, Maine-based SurfCast, which alleged that Microsoft had infringed on its US Patent for the “tiling” concepts used in the Windows 8 operating system.

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