Appeals from the United States Patent and Trademark Office,
Patent Trial and Appeal Board in Nos. IPR2016-01127,
IPR2016-01128, IPR2016-01129, IPR2016-01130, IPR2016-01131,
IPR2016-01132, IPR2017-00599, IPR2017-00576, IPR2017-00578,
IPR2017-00579, IPR2017-00583, IPR2017-00585, IPR2017-00586,
IPR2017-00594, IPR2017-00596, IPR2017-00598, IPR2017-00600,
Jonathan Massey, Massey & Gail LLP, Washington, DC,
argued for appellants. Appellant Allergan, Inc. also
represented by Thomas Brugato, Jeffrey B. Elikan, Robert
Allen Long, Jr., Alaina Marie Whitt, Coving-ton & Burling
LLP, Washington, DC.
Miller, Perkins Coie, LLP, Seattle, WA, argued for appellees.
Appellee Mylan Pharmaceuticals Inc. also represented by Dan
L. Bagatell, Hanover, NH; Shannon Bloodworth, Brandon Michael
White, Washington, DC; Charles Curtis, Andrew Dufresne,
Madison, WI; Jad Allen Mills, Steven William Parmelee,
Wilson, Sonsini, Goodrich & Rosati, PC, Seattle, WA;
Richard Torczon, Washington, DC.
R. Freeman, Appellate Staff, Civil Division, United States
Department of Justice, Washington, DC, argued for amicus
curiae United States. Also represented by Courtney Dixon,
Mark B. Stern, Chad A. Readler.
Michael W. Shore, Shore Chan DePumpo LLP, Dallas, TX, for
appellant Saint Regis Mohawk Tribe. Also represented by
Alfonso Chan, Joseph F. DePumpo, Christopher Liimatainen
Evans; Marsha K. Schmidt, Burtonsville, MD.
Christopher Rozendaal, Sterne Kessler Goldstein & Fox,
PLLC, Washington, DC, for appellee Teva Pharmaceuticals USA,
Inc. Also represented by Michael E. Joffre, William H.
Milliken, Pauline Pelletier, Ralph Wilson Powers, III.
Michael R. Dzwonczyk, Sughrue Mion PLLC, Washington, DC, for
appellee Akorn, Inc. Also represented by Mark Boland.
Huang, Zuber Lawler & Del Duca LLP, New York, NY, for
amicus curiae New York City Bar Association.
Shumsky, Orrick, Herrington & Sutcliffe LLP, Washington,
DC, for amicus curiae Microsoft Corporation. Also represented
by Samuel Harbourt; E. Joshua Rosenkranz, New York, NY.
Charles Duan, R Street Institute, Washington, DC, for amici
curiae R Street Institute, Electronic Frontier Foundation.
Thorne, Kellogg, Hansen, Todd, Figel & Frederick,
P.L.L.C., Washington, DC, for amici curiae High Tech
Inventors Alliance, Computer & Communications Industry
Association. Also represented by Gregory G. Rapawy.
Charles R. Macedo, Amster Rothstein & Ebenstein LLP, New
York, NY, for amicus curiae Askeladden, L.L.C. Also
represented by Mark Berkowitz, Sandra A. Hudak.
Anna-Rose Mathieson, California Appellate Law Group, San
Francisco, CA, for amicus curiae America's Health
William M. Jay, Goodwin Procter LLP, Washington, DC, for
amicus curiae The Association for Accessible Medicines. Also
represented by Jaime Ann Santos; Jeffrey Francer, The
Association for Accessible Medicines, Washington, DC.
Amelia Calaf, Wittliff Cutter, Austin, TX, for amici curiae
Software & Information Industry Association, L Brands,
Inc., SAS Institute Inc., SAP America, Inc., Internet
Association, Xilinx, Inc.
Dyk, Moore, and Reyna, Circuit Judges.
Pharmaceuticals, Inc., petitioned for inter partes review
("IPR") of various patents owned by Allergan, Inc.,
relating to its dry eye treatment Restasis. Teva
Pharmaceuticals USA, Inc., and Akorn, Inc. (together with
Mylan, "Appellees") joined. While IPR was pending,
Allergan transferred title of the patents to the Saint Regis
Mohawk Tribe, which asserted sovereign immunity. The Board
denied the Tribe's motion to terminate on the basis of
sovereign immunity and Allergan's motion to withdraw from
the proceedings. Allergan and the Tribe appeal, arguing the
Board improperly denied these motions. We affirm.
appeal stems from a multifront dispute between Allergan and
various generic drug manufacturers regarding patents related
to Allergan's Restasis product (the "Restasis
Patents"), a treatment for alleviating the symptoms of
chronic dry eye. In 2015, Allergan sued Appellees in the
Eastern District of Texas, alleging infringement of the
Restasis Patents based on their filings of Abbreviated New
Drug Applications. On June 3, 2016, Mylan petitioned for IPR
of the Restasis Patents. Subsequently, Teva and Akorn filed
similar petitions. The Board instituted IPR and scheduled a
consolidated oral hearing for September 15, 2017.
the hearing, Allergan and the Tribe entered into an agreement
Mylan alleges was intended to protect the patents from
review. On September 8, 2017, a patent assignment
transferring the Restasis patents from Aller-gan to the Tribe
was recorded with the USPTO. The Tribe moved to terminate the
IPRs, arguing it is entitled to assert tribal sovereign
immunity, and Allergan moved to withdraw. The Board denied
and the Tribe appeal. We have jurisdiction pursuant 28 U.S.C.
§ 1295(a)(4)(A). Board decisions must be set aside if
they are "arbitrary, capricious, an abuse of discretion,
or otherwise ...