The status quo has not solved. Previous attempts at judicial remedies did not remedy the underlying issue.
Lipiz 19 – J.D. Candidate at the University of California, Berkeley.
Julea Lipiz, “EYE SEE WHAT YOU’RE DOING: AN ANALYSIS OF ALLERGAN’S USE OF TRIBAL SOVEREIGN IMMUNITY TO EVADE IPR OF THEIR EYE PRODUCT, RESTASIS,” Berkeley Technology Law Review, https://btlj.org/data/articles2019/34_4/05_Lipiz_WEB.pdf
The Federal Circuit was correct in finding Allergan’s infamous use of tribal sovereign immunity to be inappropriate. However, the Federal Circuit decision did not address the underlying issues present. The opinion only looks at how FMC’s multi-factor balancing test weighs an agency adjudication. It doesn’t look at why certain agency adjudications have sovereign immunity to begin with. Without an analysis of the underlying purposes, which often serve as “goals” guiding the inquiry, multi-factor tests such as those of FMC become somewhat suspect. If a judicial body doesn’t know the reason for each factor of a test and the weight each factor should be given, then the “weight” of each factor becomes arbitrary and open to discretion.