The Federal Circuit panel of Dyk, Moore, & Reyna heard oral arguments in the Mohawk/Allergen Sovereign Immunity IPR case. Not surprisingly, Judge Dyk betrayed a clear bias in favor of finding that sovereign immunity was not applicable, but even if it was finding that there was a sham transaction or that a waiver had taken place. Judge Dyk repeatedly came to the defense of Mylan and the USPTO whenever they were pressed with tough questions. Judge Moore showed a true command of the issues and zeroed in on the major problems with sustaining the PTAB's decision, particularly in view of Judge Gorsuch's majority opinion in SAS. The PTAB's decision was hanging by a single thread in her view - that the director's discretion to institute the IPR somehow distinguished the case from binding precedent and thus enabled an affirmance. Judge Reyna seemed per-occupied with several side issues and it was difficult to read where we might come down.

The most interesting discussion focused on how an IPR, as a hybrid between civil litigation and administrative agency review, could be distinguished from precedent. The decision in SAS provided strong ammunition to the tribe as the Supreme Court repeatedly referred to IPRs as being like civil litigation. The only distinction left was the director's discretion, noted above, as a way to distinguish FMC (Federal Maritime Commission v. South Carolina State Ports Authority), which otherwise seems to clearly require that the PTAB's decision be reversed. In FMC, there is some discussion regarding the proceeding being one in which sovereign immunity applies because of numerous reasons, one of which is that the administrative official had no discretion in instituting the action. While this seems like a minor distinction given the many other factors that are exactly like FMC, we now await the decision, which will likely end up before the Supreme Court either way.