This morning, the Federal Circuit issued its much anticipated decision in St. Regis Mohawk Tribe v. Mylan Pharmaceuticals.  A panel of the court, consisting of Judges Dyk, Moore, and Reyna, held that “tribunal sovereign immunity cannot be asserted in IPRs.”  Relying on the Supreme Court’s decisions in Oil States and SAS Institute, the court explained that an IPR is a hybrid proceeding having some characteristics of judicial proceedings and other characteristics of specialized agency proceedings.  “Ultimately,” the court found, “several factors convince us that IPR is more like an agency enforcement action than a civil suit brought by a private party, and we conclude that tribal immunity is not implicated.”

Judge Dyk issued a concurring opinion in which he provided greater detail concerning the history of IPRs, which he found “confirms that those proceedings are not adjudications between private parties.”