As we previously reported, a panel of the Federal Circuit in St. Regis Mohawk Tribe v. Mylan held that “tribal immunity cannot be asserted in IPRs.” The Federal Circuit’s decision, if upheld, means that Allergan’s sale and license-back of patents covering its branded product Restasis to the Tribe was ineffective in shielding the subject patents from inter partes review. Now, Allergan and the Tribe have petitioned for rehearing en banc, arguing that the panel misapplied several precedential opinions from the Supreme Court and the Federal Circuit in rendering its decision. The court has requested a response from Mylan on or before September 4.
Stay tuned to Big Molecule Watch for further updates on this appeal.