Native American Tribes Immune From Patent Infringement Suits

In the near future, Native American tribal organizations might consider expanding operations in many technological areas in view of recent court decisions indicating that tribes enjoy sovereign immunity from patent infringement suits. According to the courts, sovereign immunity applies to Native American tribes even for activities performed off the reservation and regardless of whether the activities are commercial in nature. Practitioners should be aware of the possibility for such a trend and consider the implications for litigation, including assessing the possibility of lawsuits against alternative direct infringers who may be unaffiliated with the tribe.

In Home Bingo Network v. Multimedia Games, Inc., 2005 U.S. Dist. LEXIS 34238 (N.D.N.Y Aug. 30, 2005), a patent infringement claim was alleged against a Native American tribe's business development authority. The court granted a motion to dismiss the action against the tribe's business development authority because the business development authority was an arm of the Native American tribe and, therefore, entitled to sovereign immunity. Id. at *4-6. The court indicated that the immunity applies regardless of whether the business development authority was engaging in activity off the reservation or whether the activity was commercial in nature. Id. at *4.

The court in Home Bingo pointed to the Supreme Court decision in Kiowa Tribe of Okla. v. Manufacturing Techs., Inc., 523 U.S. 751, 754 (1998), for the proposition that Native American tribes enjoy the same immunity from suit enjoyed by sovereign powers and are subject to suit only where Congress has authorized the suit or the tribe has waived its immunity. The court in Home Bingo further pointed to the Supreme Court decision in C & L Enters., Inc. v. Citizen Band Potawatomi Indian Tribe of Okla., 532 U.S. 411, 418 (2001), for the proposition that to abrogate tribal immunity, Congress must "unequivocally" express that purpose. According to the court in Home Bingo, Congress has not expressly waived tribal immunity with respect to the enforcement of patents, so Native American tribes enjoy sovereign immunity from patent infringement suits.

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