Native American Nation Shielded From Patent Infringement Claims

from the opportunity? dept

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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Comments on “Native American Nation Shielded From Patent Infringement Claims”

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32 Comments
Chris Ball (profile) says:

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.)

Lola Jane Coleman says:

Re: 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

Anonymous Coward says:

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.

The Mighty Buzzard (profile) says:

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.

Mike says:

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).

Anonymous Coward says:

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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