Case: 18-1638 Document: 163 Page: 1 Filed: 09/07/2018
`
`2018-1638, 2018-1639, 2018-1640, 2018-1641, 2018-1642, and 2018-1643
`
`
`In the United States Court of Appeals
`For the Federal Circuit
`
`SAINT REGIS MOHAWK TRIBE, ALLERGAN, INC.,
`
`
`Appellants,
`
`v.
`
`
`MYLAN PHARMACEUTICALS, INC., TEVA PHARMACEUTICALS USA, INC., AND
`AKORN, INC,
`
`
`
`Appellees.
`
`
`Appeals from: Patent and Trademark Office - Patent Trial and Appeal Board
`in Inter Partes Review Nos. IPR2016-01127, IPR2016-01128, IPR2016-01129,
`IPR2016-01130, IPR2016-01131, IPR2016-01132, IPR2017-00576,
`IPR2017-00578, IPR2017-00579, IPR2017-00583, IPR2017-00585,
`IPR2017-00586, IPR2017-00594, IPR2017-00596, IPR2017-00598,
`IPR2017- 00599, IPR2017-00600, IPR2017-00601
`
`
`
`BRIEF FOR AMICUS CURIAE
`STC.UNM AND WILLIAM ESKRIDGE, JR. FOR
`APPELLANTS SAINT REGIS MOHAWK TRIBE AND ALLERGAN, INC.
`
`
`
`
`
`Rajkumar Vinnakota
`Glenn E. Janik
`JANIK VINNAKOTA LLP
`8111 LBJ Freeway, Suite 790
`Dallas, Texas
`kvinnakota@jvllp.com
`gjanik@jvllp.com
`Tel: (214) 390-9999
`
`Counsel for Amicus Curiae
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2011, p. 1
`
`

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`Case: 18-1638 Document: 163 Page: 2 Filed: 09/07/2018
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`CERTIFICATE OF INTEREST
`
`Counsel for amici curiae certify the following:
`
`1. The full name of every amicus I represent is:
`
`STC.UNM and William Eskridge, Jr.
`
`2. The name of the real party-in-interest I represent is:
`
`STC.UNM and William Eskridge, Jr.
`
`3. The parent corporation and publicly held companies that own 10 percent or more
`
`of stock of the party I represent is:
`
`STC.UNM is a nonprofit research park formed under the laws of the
`
`State of New Mexico. Its sole member is the Regents of the University of New
`
`Mexico (“The University”). STC.UNM is governed by an independent board of
`
`directors appointed by The University.
`
`William Eskridge, Jr. is a professor and scholar of civil procedure,
`
`statutory interpretation, and constitutional law.
`
`4. The names of all law firms and the partner or associates that appeared for this
`
`party represented by me in the trial court or are expected to appear in this Court
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`(and who have not or will not enter an appearance in this case) are:
`
`William Eskridge, Jr.
`
`
`
`i
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`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2011, p. 2
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`

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`Case: 18-1638 Document: 163 Page: 3 Filed: 09/07/2018
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`5. The title and number of any case known to be pending in this or any other court
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`or agency that will directly affect or be affected by this Court’s decision in this
`
`appeal:
`
`Regents of the University of Minnesota v. LSI Corporation et al, Nos. 2018-1559
`(Lead), -1560, 1561, 1562, 1563, 1564, 1565.
`
`
`
`
`
`
`
`ii
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`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2011, p. 3
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`

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`Case: 18-1638 Document: 163 Page: 4 Filed: 09/07/2018
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`TABLE OF CONTENTS
`
`
`CERTIFICATE OF INTEREST ................................................................................ i
`
`TABLE OF CONTENTS ......................................................................................... iii
`
`TABLE OF AUTHORITIES ................................................................................... iv
`
`STATEMENT BY AMICUS CURIAE ...................................................................... 1
`
`SUMMARY OF THE ARGUMENT ........................................................................ 2
`
`ARGUMENT ............................................................................................................. 2
`
`I. The 2011 Act creating the IPR established an agency adjudication
`between adverse parties, not another bureaucratic reexamination. .............. 3
`
`II. The IPR process is a party-directed administrative adjudication that
`mimics federal court adjudication. ................................................................ 5
`
`III. The PTAB is not exercising the politically accountable prosecutorial
`role that Alden v. Maine contrasted with adjudication.................................. 8
`
`CERTIFICATE OF COMPLIANCE .......................................................................13
`
`CERTIFICATE OF SERVICE ................................................................................14
`
`
`
`
`
`
`
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`
`
`iii
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`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2011, p. 4
`
`

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`Case: 18-1638 Document: 163 Page: 5 Filed: 09/07/2018
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`TABLE OF AUTHORITIES
`
`CASES:
`
`Alden v. Maine,
`527 U.S. 706 (1999) ...................................................................................... passim
`
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ................................................................................................ 6
`
`
`Bob Jones Univ. v. United States,
`461 U.S. 574 (1983) ................................................................................................ 8
`
`
`Chao v. Virginia Dept. of Transportation,
`291 F.3d 276 (4th Cir. 2002) .................................................................................10
`
`
`Federal Maritime Comm’n v. South Carolina State Ports Auth.,
`535 U.S. 743 (2002) ....................................................................................... 2, 5, 9
`
`
`Hampton v. Mow Sun Wong,
`426 U.S. 88 (1976) ................................................................................................11
`
`
`King v. Burwell,
`135 S. Ct. 2480 (2015) ..........................................................................................11
`
`
`Republic of Philippines v. Pimentel,
`553 U.S. 851 (2008) ................................................................................................ 7
`
`
`SAS Inst., Inc. v. Iancu,
`138 S.Ct. 1348 (2018) .............................................................................. 4, 5, 6, 10
`
`
`U.S. v. Alabama Dept. of Mental Health and Mental Retardation,
`673 F.3d 1320 (11th Cir. 2012) .............................................................................10
`
`STATUTES:
`
`35 U.S.C. § 31 ............................................................................................................ 4
`
`35 U.S.C. § 271 .......................................................................................................... 3
`
`35 U.S.C. § 314 ......................................................................................................6, 7
`
`
`
`iv
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`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2011, p. 5
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`

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`Case: 18-1638 Document: 163 Page: 6 Filed: 09/07/2018
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`35 U.S.C. § 315 .......................................................................................................... 5
`
`46 U.S.C. App. § 1710 ............................................................................................... 9
`
`RULES:
`
`FED. R. APP. P. 32 ....................................................................................................... 1
`
`FED. R. CIV. P. 8 ......................................................................................................... 6
`
`FED. R. CIV. P. 12 ....................................................................................................... 6
`
`FED. R. CIV. P. 26 ....................................................................................................... 5
`
`FED. R. CIV. P. 65 ....................................................................................................... 7
`
`REGULATIONS:
`
`Patent Office Trial Practice Guide,
`77 Fed. Reg. 48756, 48761-62 (Aug. 14, 2012) .................................................5, 8
`
`OTHER AUTHORITIES:
`
`Buchanan Ingersoll & Rooney, Terminating a Post-Grant Proceedings By
`Settlement Before the Patent Trial Appeals Board Has “Decided the Merits”
`(Dec. 12, 2016). ....................................................................................................... 8
`
`
`
`LEGISLATIVE MATERIAL:
`
`H.R. Rep. Nos. 112-98 ...........................................................................................4, 7
`
`H.R. Rep. Nos. 106-464 ............................................................................................. 3
`
`
`
`
`v
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`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2011, p. 6
`
`

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`Case: 18-1638 Document: 163 Page: 7 Filed: 09/07/2018
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`
`
`STATEMENT BY AMICUS CURIAE
`
`STC.UNM is a New Mexico nonprofit research park corporation created and
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`controlled by the Regents of the University of New Mexico. The STC.UNM mission
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`is to “foster a Rainforest in the Desert” and play a vital role in The State of New
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`Mexico’s economic development strategy by nurturing
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`innovation and
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`commercializing technological advances created or developed by The University.
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`To achieve its goals, STC.UNM seeks patent protection for the technologies
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`developed at The University. A key driver of the innovation cycle is STC.UNM’s
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`ability to license its patented technology both to generate income necessary to
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`support additional research and to incent licensees as economic stakeholders to
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`develop the technologies and foster their adoption in the marketplace. Thus,
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`STC.UNM possesses a strong interest in ensuring that it retains its right to participate
`
`in the patent system as a sovereign.
`
`William Eskridge, Jr. is a professor and scholar of civil procedure, statutory
`
`interpretation, and constitutional law and has a professional and academic interest in
`
`seeing that the law develops in accordance with the dictates of the Constitution and
`
`sound public policy. Professor Eskridge’s expertise in civil procedure, statutory
`
`interpretation, and constitutional law may assist the Court in setting proper
`
`precedent.
`
`
`
`1
`
`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2011, p. 7
`
`

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`Case: 18-1638 Document: 163 Page: 8 Filed: 09/07/2018
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`
`
`This brief was not authored by counsel for any party to this case. No party in
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`this case or counsel for a party in this case contributed money that was intended to
`
`fund preparing or submitting this brief. No person other than Amici contributed
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`money that was intended to fund preparing or submitting the brief.
`
`Appellants and Teva have consented to the filing of this brief. Mylan “takes
`
`no position and does not intend to file a response.” Akorn never responded so its
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`position is unknown.
`
`SUMMARY OF THE ARGUMENT
`
`This brief amicus curiae is submitted in support of the petition for rehearing
`
`en banc filed by the St. Regis Mohawk Tribe, the Patent Owner. The panel’s decision
`
`of July 20, 2018 mistakenly applied the Supreme Court’s decision in Alden v. Maine,
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`527 U.S. 706, 756 (1999) to analogize inter partes review (IPR) proceedings to
`
`lawsuits by the United States against the states and ignored the overwhelming
`
`evidence that IPRs are classic agency adjudications, as to which sovereign immunity
`
`applies.
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`The panel’s decision rested upon its determination that an inter partes
`
`ARGUMENT
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`(“between the parties”) review is analogous to a lawsuit or administrative action by
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`the United States, as the plenary sovereign, against the Tribe and, conversely, is not
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`analogous to an agency adjudication of rights “between the parties” that must respect
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`tribal and state immunity. E.g., Federal Maritime Comm’n v. South Carolina State
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`
`
`2
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`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2011, p. 8
`
`

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`Case: 18-1638 Document: 163 Page: 9 Filed: 09/07/2018
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`
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`Ports Auth., 535 U.S. 743, 754-56 (2002) (FMC). The panel critically relied on
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`Alden, 527 U.S. at 756, where the Supreme Court contrasted an adjudication against
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`a state in its own courts, as to which sovereign immunity is the rule, and a lawsuit
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`brought by the United States itself, where the state enjoys no immunity. Add. 8, 11.
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`The panel’s determination that the IPR is a proceeding “in which an agency
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`chooses to institute a proceeding on information supplied by a private party,” and
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`not an adjudication “between the parties,” is 180 degrees opposite to the
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`determination made by Congress when it created the IPR process in the America
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`Invents Act of 2011, P.L. 112-29, § 6. Moreover, the panel understated the close
`
`parallels between the IPR process and ordinary civil adjudication. Finally, the actual
`
`analysis in Alden v. Maine confirms and amplifies the foregoing analysis.
`
`I.
`
`The 2011 Act creating the IPR established an agency adjudication
`between adverse parties, not another bureaucratic reexamination.
`
`The Patent Act has long afforded private parties opportunities to challenge the
`
`validity of a patent in civil litigation—either as a defense in an infringement action,
`
`35 U.S.C. § 271, or in a declaratory judgment action. Although patents enjoy a
`
`presumption of validity in court, the Patent Office often missed relevant prior art. In
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`P.L. 96-57 (1980), Congress created a process of ex parte reexamination, but few
`
`patent challengers took advantage of it. Concluding that patent challengers would be
`
`more willing to forego lawsuits if they had “an opportunity to argue their case for
`
`patent invalidity in the USPTO,” H.R. Rep. No. 106-464, at 133 (1999), Congress
`
`
`
`3
`
`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2011, p. 9
`
`

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`Case: 18-1638 Document: 163 Page: 10 Filed: 09/07/2018
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`
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`created a process of inter partes reexamination, as a hybrid of the inquisitorial agency
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`examination process and an adversarial adjudication process. P.L. 106-113 (1999),
`
`adding new 35 U.S.C. § 31.
`
`In 2011, Congress found that the existing processes were not working
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`efficiently. H.R. Rep. 112-98, at 39 (2011). The 2011 Act rewrote chapter 31 to
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`create the new IPR process. Judge Dyk’s lengthy concurring opinion observed that
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`Congress was trying to improve the process for correcting patent errors, Add. 21-22,
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`but missed the fact that Congress understood the new process as a different kind of
`
`procedure than the various reexamination procedures. The House Report summed
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`up the plan: “The Act converts inter partes reexamination from an examinational to
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`an adjudicative proceeding, and renames the proceeding ‘inter partes review.’” H.R.
`
`Rep. No. 112-98, at 46-47 (2011) (emphasis added) (describing new chapter 31).
`
`The Supreme Court held in SAS Inst., Inc. v. Iancu, 138 S.Ct. 1348 (2018), that IPR
`
`is a “procedure allow[ing] private parties to challenge previously issued patent
`
`claims in an adversarial process that mimics civil litigation,” not an inquisitorial
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`process that mimics the original agency decision. Id. at 1352 (emphasis added).
`
`Putting the same point another way, Congress intended that the IPR be an
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`attractive alternative to a federal court adjudication and not merely another internal
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`agency review. Unlike the reexamination processes created in earlier statutes, the
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`IPR cannot proceed if the petitioner has filed a civil action challenging the validity
`
`
`
`4
`
`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2011, p. 10
`
`

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`Case: 18-1638 Document: 163 Page: 11 Filed: 09/07/2018
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`
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`of the patent. 35 U.S.C. § 315(a)(1). Likewise, if the IPR judgment is that the patent
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`is valid, the petitioner is estopped from making its claims of invalidity in another
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`IPR or in a civil lawsuit. 35 U.S.C. § 315(e). “In FMC, the Court rejected the idea
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`that sovereign immunity could be circumvented by merely moving a proceeding
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`from an Article III court to an equivalent agency tribunal.” Add. 10.
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`II. The IPR process is a party-directed administrative adjudication
`that mimics federal court adjudication.
`
`IPRs are “party-directed, adversarial” proceedings before neutral judges, with
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`most of the “usual trappings of litigation,” SAS, 138 S.Ct. at 1354-55, including the
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`many features identified in the Petition for Rehearing En Banc 3-6. Thus, the panel
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`erroneously concluded that “procedures in IPR do not mirror the Federal Rules of
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`Civil Procedure [FRCP].” Add. 9. Indeed, the PTAB procedures followed in an IPR
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`mirror the FRCP much like the agency procedures the Supreme Court evaluated in
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`FMC, 535 U.S. at 756-59, including discovery rules, where administrative
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`adjudications are almost always more informal. Id. at 758-59. The Patent Office
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`Trial Practice Guide, 77 Fed. Reg. 48756, 48761-62 (Aug. 14, 2012), offers a broad
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`array of discovery rights monitored by the administrative patent judges, including
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`rules for protective orders, id. at 48769-71 (app. B), and for e-discovery, id. at
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`48771-72 (app. C), that are more detailed than those in the FRCP. Cf. FRCP
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`26(b)(1)-(2), (c) (protective orders); FRCP 26(b)(2)(B) and 34(a)(1), (b)(1)(C),
`
`(b)(2)(B) & (D)-(E) (electronic discovery).
`
`
`
`5
`
`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2011, p. 11
`
`

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`Case: 18-1638 Document: 163 Page: 12 Filed: 09/07/2018
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`
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`Also important to the panel’s analogy of the IPR to a lawsuit brought by the
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`United States was its view that the Director “has broad discretion in deciding
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`whether to institute review,” meaning that “a politically accountable, federal official
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`has authorized the institution of the proceeding.” Add. 8. This analysis is completely
`
`wrong. Section 314(a) says that the “Director may not authorize an inter partes
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`review to be instituted, unless the Director determines that the information presented
`
`in the petition * * * shows that there is a reasonable likelihood that the petitioner
`
`would prevail with respect to at least 1 of the claims challenged in the petition.” The
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`Director has delegated this screening decision to the PTAB. SAS, 138 S.Ct. at 1353.
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`This is apt, because screening out unmeritorious claims is a core feature of
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`adjudication. As FRCP 8 and 12(b)(6) have been interpreted by the Supreme Court,
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`federal judges should not allow civil lawsuits to continue unless they find that a
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`complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to
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`relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009).
`
`The main difference between the screening authority of administrative patent
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`judges under § 314(a) and the authority of Article III judges under the FRCP is that
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`the decision of the patent judges not to proceed is unreviewable. 35 U.S.C. § 314(d).
`
`That feature vests the patent judges with more discretionary control over their docket
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`than federal judges have, but the discretion of a tribunal to control its docket does
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`not affect the proper characterization of the IPR as an adjudication. Iqbal, 556 U.S.
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`
`
`6
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`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2011, p. 12
`
`

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`Case: 18-1638 Document: 163 Page: 13 Filed: 09/07/2018
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`
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`at 678-79, 684-85. In the House Report, the discussion of the standard for instituting
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`IPRs immediately followed the statement that the 2011 Act changed chapter 31 from
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`“an examinational to an adjudicative proceeding.” H.R. Rep. No. 112-98, at 47.
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`Additionally, the tribunal’s discretion is one-way: it has broad discretion not
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`to allow an IPR to go forward, but § 314(a) imposes a legal standard on the tribunal
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`before the IPR can proceed. The “reasonable likelihood of prevailing” standard is
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`the standard applied by federal courts deciding whether to issue a preliminary
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`injunction under FRCP 65. “Satisfaction of the [IPR] threshold will be assessed
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`based on the information presented both in the petition for the proceeding and in the
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`patent owner’s response to the petition.” H.R. Rep. No. 112-98, at 47 (2011). See
`
`also Republic of Philippines v. Pimentel, 553 U.S. 851, 864-67 (2008) (once a
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`tribunal recognizes that an assertion of sovereign immunity is “not frivolous,” it is
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`“error” for the tribunal to address the merits).
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`Finally, the panel claimed that, once an IPR has been initiated, the Board has
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`the discretion to continue the review process even if the petitioner or the patent
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`owner is not participating. Add. 9. The statutory text tells a much more constrained
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`story. Section 317(a) provides that “[a]n inter partes review instituted under this
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`chapter shall be terminated with respect to any petitioner upon the joint request of
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`the petitioner and the patent owner, unless the Office has decided the merits of the
`
`proceeding before the request for termination is filed. * * * If no petitioner remains
`
`
`
`7
`
`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2011, p. 13
`
`

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`Case: 18-1638 Document: 163 Page: 14 Filed: 09/07/2018
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`
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`in the inter partes review, the Office may terminate the review or proceed to a final
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`written decision” (emphasis added). Accord, Trial Practice Guide, 77 Fed. Reg. at
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`48768 (PTAB is supposed to facilitate settlement but may issue a decision
`
`nonetheless if it had already decided the merits by the time the parties settle).
`
`The PTAB has relied on this rule to issue a decision after the parties’
`
`settlement late in the process. See e.g., Apple, Inc. v. OpenTV, Inc., Case No.
`
`IPR2015-00969 (Sept, 9, 2016); Buchanan Ingersoll & Rooney, Terminating a Post-
`
`Grant Proceedings By Settlement Before the Patent Trial Appeals Board Has
`
`“Decided the Merits” (Dec. 12, 2016). “Using its discretion in this manner is fairly
`
`consistent with how courts generally issue decisions ‘on the merits.’” Id. at 4. For
`
`example, in Bob Jones Univ. v. United States, 461 U.S. 574 (1983), the Supreme
`
`Court decided a big tax policy question, notwithstanding the fact that the taxpayer
`
`and the government had reached agreement, after review had been granted, that the
`
`lower court was incorrect. (The Supreme Court affirmed.)
`
`III. The PTAB
`the politically accountable
`is not exercising
`prosecutorial role
`that Alden v. Maine contrasted with
`adjudication.
`
`Citing Alden, 527 U.S. at 756, the panel analogized a lawsuit by the United
`
`States against a sovereign with the IPR, because the latter proceeds only “because a
`
`politically accountable, federal official has authorized the institution of that
`
`proceeding.” Add. 8; also 11. As demonstrated above, the tribunal of administrative
`
`
`
`8
`
`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2011, p. 14
`
`

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`Case: 18-1638 Document: 163 Page: 15 Filed: 09/07/2018
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`
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`patent judges makes the decision to allow an IPR to proceed, and it does so under
`
`standard legal criteria of the sort that federal judges apply in civil litigation. Unlike
`
`a lawsuit by the United States—which would be captioned something like United
`
`States v. St. Regis Mohawk Tribe—the adjudication in St. Regis Mohawk Tribe v.
`
`Mylan Pharmaceuticals Inc. was initiated by a private requester, the issues have
`
`been limited to those raised by the private parties, discovery exchanges have been
`
`between the private parties, and the briefing and litigation strategy have been driven
`
`by the private parties. When the “United States” (represented by the Department of
`
`Justice) participated in this court, it did so as an amicus curiae, not as a party with
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`political responsibility for the prosecution of this litigation. The panel’s extension of
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`Alden’s dictum to this proceeding borders on the bizarre.
`
`Indeed, the panel’s ambitious reading of the Alden dictum would swallow up
`
`the Supreme Court’s holding in FMC. Although the FMC had discretion to
`
`determine the “appropriate manner” to investigate the complaining party’s
`
`grievance, 46 U.S.C. App. § 1710(b), the Supreme Court found the agency
`
`proceedings to be adjudications as to which sovereign immunity applied. FMC, 535
`
`U.S. 743. Indeed, the FMC’s order could not be directly enforced and required the
`
`Attorney General to file a lawsuit, which would bring FMC within the panel’s
`
`reasoning.
`
`
`
`9
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`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2011, p. 15
`
`

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`Case: 18-1638 Document: 163 Page: 16 Filed: 09/07/2018
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`
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`Moreover, the panel’s conclusion is inconsistent with Alden’s core reasoning.
`
`Alden rested upon the foundational “importance of sovereign immunity to the
`
`founding generation,” 527 U.S. at 726-27, partly to protect the sovereign’s ability to
`
`govern according to the will of its citizens and to raise money and allocate scarce
`
`resources. Id. at 751. The founders considered lawsuits against sovereign entities
`
`inconsistent with Article III’s grant of adjudication authority. Id. at 719-26.
`
`Exceptions to this baseline were “[s]uits brought by the United States itself,” which
`
`“require the exercise of political responsibility for each suit prosecuted against a
`
`State, a control which is absent from a broad delegation to private persons to sue
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`nonconsenting States.” Id. at 756; see id. at 759-60.
`
`The IPR process “between the parties” is a far cry from a major lawsuit
`
`brought by the United States itself. For example, Alden suggests that it is important
`
`that the United States exercise political control of the litigation. 527 U.S at 756. That
`
`means a case must be “litigated by lawyers within, and * * * under the full control
`
`of the Executive Branch.” Chao v. Virginia Dept. of Transportation, 291 F.3d 276,
`
`281 (4th Cir. 2002); accord, U.S. v. Alabama Dept. of Mental Health and Mental
`
`Retardation, 673 F.3d 1320, 1327 (11th Cir. 2012). That is not the case here.
`
`“Congress chose to structure a process in which it’s the petitioner, not the Director,
`
`who gets to define the contours of the proceeding.” SAS, 138 S.Ct at 1355.
`
`
`
`10
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`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2011, p. 16
`
`

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`Case: 18-1638 Document: 163 Page: 17 Filed: 09/07/2018
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`
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`Finally, the PTAB’s assertion of authority over a sovereign tribe is
`
`inconsistent with cautionary principles of statutory construction. The Supreme Court
`
`has admonished agencies (like the Patent Office) not to make bold policy moves
`
`beyond their narrow competence. See e.g., King v. Burwell, 135 S. Ct. 2480, 2489
`
`(2015); Hampton v. Mow Sun Wong, 426 U.S. 88, 114-16 (1976). Further, to the
`
`extent the panel suggested that the Director is exercising political responsibility
`
`under the Take Care Clause (noted in Alden, 527 U.S. at 756), there is nothing in the
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`statutory text or legislative history to allow the panel conclude that the Director is to
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`play any such role or has the authority to decide whether a sovereign may be subject
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`to suit.
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`The Patent Owner’s Motion for Rehearing En Banc should be granted.
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`CONCLUSION
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`11
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`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2011, p. 17
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`

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`Case: 18-1638 Document: 163 Page: 18 Filed: 09/07/2018
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`.
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`Dated: September 6, 2018
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`Respectfully submitted,
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`
`
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`By: /s/ Rajkumar Vinnakota
`Rajkumar Vinnakota
`Glenn E. Janik
`JANIK VINNAKOTA LLP
`8111 LBJ Freeway, Suite 790
`Dallas, Texas 75251
`kvinnakota@jvllp.com
`gjanik@jvllp.com
`Tel: (214) 390-9999
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`Counsel for Amicus Curiae
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`
`
`William N. Eskridge, Jr.
`John A. Garver Professor of
`Jurisprudence*
`Yale Law School
`127 Wall Street
`New Haven CT 06511
`Tel. (203) 432-9056
`william.eskridge@yale.edu
`
`*Affiliations noted for identification
`purposes only
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`12
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`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2011, p. 18
`
`

`

`Case: 18-1638 Document: 163 Page: 19 Filed: 09/07/2018
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`CERTIFICATE OF COMPLIANCE
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`1.
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`This petition complies with the type-volume limitations of Federal Rule
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`of Appellate Procedure 32 because this brief contains 2599 words, excluding the
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`exempted parts of the brief.
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`2.
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`This petition complies with the typeface requirements of Federal Rule
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`of Appellate Procedure 32(a)(5) and the type-style requirements of Federal Rule of
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`Appellate Procedure 32(a)(6) because it has been prepared in a proportionally spaced
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`typeface using Microsoft Word 2018 in Times New Roman 14-point font.
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`
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`Dated: September 6, 2018
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`/s/ Rajkumar Vinnakota
`Rajkumar Vinnakota
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`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2011, p. 19
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`

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`Case: 18-1638 Document: 163 Page: 20 Filed: 09/07/2018
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`
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`CERTIFICATE OF SERVICE
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`I hereby certify under penalty of perjury that on this 4th day of September
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`2018, a copy of the foregoing was filed electronically through the Court’s CM/ECF
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`system. Pursuant to Federal Circuit Rule 25, the Notice of Docketing Activity
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`generated by that filing constitutes service on opposing counsel.
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`Dated: September 6, 2018
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`
`/s/ Rajkumar Vinnakota
`Rajkumar Vinnakota
`
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`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2011, p. 20
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`