History Lesson

Submitted by patentadmin on Fri, 02/11/2011 - 13:41

Sometime ago, we wrote about a U.S. patent being enforced in Puerto Rico – yes, Puerto Rico is part of the United States. Now, we write about a U.S. patent which is not being enforced in an Indian reservation, in Oklahoma, because the reservation is a separate nation and, in that respect, not part of the United States. (Specialty House Of Creation, Incorporated v. Quapaw Tribe Of Oklahoma, a federally recognized Indian nation)

Specialty House sued the Quapaw Tribe, alleging infringement of a Specialty House patent by the tribe on their tribal reservation. The Tribe moved to dismiss the case on the grounds that, as a federally recognized Indian nation, they were immune from suit. “As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.”

Specialty House argued that “sovereign immunity” of the tribe did not extend to patent matters. Wrong, said the Court. A waiver of sovereign immunity must be “unequivocally expressed” and Specialty House was unable to cite any authority that Congress has expressly abrogated tribal sovereign immunity with respect to the enforcement of patents. No help there.

In a Hail Mary effort, Specialty House then reached back into the dim – and inglorious – recesses of American history to argue that “the Quapaw Tribe is not a sovereign because of a treaty of alliance it entered into with the Confederate States during the Civil War and a subsequent Agreement with the United States in September of 1865.”

Historically interesting, but not good enough. As the Court – which apparently read the 1865 Agreement – noted, the Quapaws recognized that their actions in the Civil War had made them “liable to a forfeiture of all rights … which had been promised and guaranteed to them by the United States.” This apparently was a reference to the preceding treaties of 1818, 1824, 1833 and 1835 which seemingly were honored in the breach – but the 1865 Agreement went on to state that the United States – obviously a great writer of treaties – wished “to act with magnanimity with all parties deserving its clemency, and to re-establish order and legitimate authority among the Indian tribes.” The Court concluded that “[i]t is beyond dispute that the Quapaw Tribe is a federally recognized tribe” which, seemingly, can infringe U.S. patents with impunity on their reservation.

THE LESSON TO BE LEARNED: Plaintiff’s lawyers should have paid more attention in their high school American history class.

Submitted by Anonymous (not verified) on Mon, 02/28/2011 - 16:30


Another lesson: patent-free zones exist within the confines of the United States! A true entrepreneur with the right product could find a way to benefit mightily from this circumstance.

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