Stories
Slash Boxes
Comments

SoylentNews is people

posted by Fnord666 on Monday September 11 2017, @10:41PM   Printer-friendly
from the clever-lawyers dept.

Dr. Lowe has scary patent news. Allergan's patent on Restasis is being questioned in court.

Last December, the US Patent Office granted an inter partes review of the relevant patents, a decision that did not go down well with Allergan or its investors. That form of patent review has been around since 2011 and the America Invents Act, and its purpose is specifically for prior art objections to a granted patent.

Looks bad for Allergan, but then they got sneaky. They transferred the patent rights to St. Regis Mohawk Indian Nation. Why? The Indian Nation is a sovereign nation, and our patent laws don't apply to them.

Scary stuff.


Original Submission

 
This discussion has been archived. No new comments can be posted.
Display Options Threshold/Breakthrough Mark All as Read Mark All as Unread
The Fine Print: The following comments are owned by whoever posted them. We are not responsible for them in any way.
  • (Score: 5, Insightful) by Anonymous Coward on Monday September 11 2017, @10:48PM (10 children)

    by Anonymous Coward on Monday September 11 2017, @10:48PM (#566455)

    They transferred the patent rights to St. Regis Mohawk Indian Nation. Why? The Indian Nation is a sovereign nation, and our patent laws don't apply to them.

    It won't matter. A "United States Patent" is only valid in the United States (go figure...

    So, either they have just made the patent worthless, because for the same reason that the US laws don't apply to the St. Regis Mohawk Nation, the St. Regis Mohawk Nation's laws (they likely have no patent laws anyway) don't apply to the United States. Or, the "owner" of the patent is the indian nation, but it is still a patent in the United States, and still subject to United States laws. (I.e., the owner of the patent rights is not who/what determines the rules the patent plays under).

    So trying to avoid US Patent laws can't be why the patent was transferred. There must be some other reason the owner did this.

    Starting Score:    0  points
    Moderation   +5  
       Insightful=5, Total=5
    Extra 'Insightful' Modifier   0  

    Total Score:   5  
  • (Score: 2) by vux984 on Monday September 11 2017, @11:44PM (5 children)

    by vux984 (5045) on Monday September 11 2017, @11:44PM (#566471)

    There must be some other reason the owner did this.

    Agreed.

    Unless the owner is an idiot. Which is not impossible.
    Or the owner thinks they'll get away with it, because the people chasing them are idiots. Which is also not impossible.

    • (Score: 3, Insightful) by bob_super on Tuesday September 12 2017, @01:54AM (4 children)

      by bob_super (1357) on Tuesday September 12 2017, @01:54AM (#566499)

      Or, just maybe, perhaps, surprisingly, an army of well-paid lawyers know more than both of you Internet dwellers.
      Quizas, quizas, quizas,,,

      • (Score: 2) by vux984 on Tuesday September 12 2017, @02:45AM (3 children)

        by vux984 (5045) on Tuesday September 12 2017, @02:45AM (#566514)

        Quite so.

        I've read and re-read the article now and it seems like they're counting on massive loophole. The loophole might stand up in court, but at the end of the day it's just a delaying tactic -- if this works, will be smacked down by legislation in short order.

        Nobody's going to stand for this.

        • (Score: 4, Interesting) by Arik on Tuesday September 12 2017, @04:47AM (2 children)

          by Arik (4543) on Tuesday September 12 2017, @04:47AM (#566548) Journal
          Except that if the prohibition on ex post facto laws were respected, they couldn't make it retroactive, so it will still hold.

          I'm not a lawyer, let alone a patent lawyer, but I did a little research once this came up. There are several good precedents that they do have sovereign immunity from patent suits, Home Bingo Networks v Multimedia Games, Inc. for example, as well as Specialty House of Creation, Inc. v Quapaw Tribe of Oklahoma.

          So they effectively have the right to use any patents they want, without contract or payment, inside the US, as any suit brought to enforce the patent will be met with a motion to dismiss, with solid grounds. Settled case law, the court won't even get to the point of examining the patent, it simply has no jurisdiction over the case, and no one else does either, so yeah, pound sand patent owner.

          This is actually a very neat loophole that the tribes should be using a lot more than they have been, it seems to me. Worried about those stupid FAT patents? You don't need a cross-licensing agreement with Microsoft, you just need to convince a tribal government to buy controlling interest in your enterprise, you're now working for the tribal government, and it has immunity to suit. We should have been using this for years!

          What does NOT seem to be covered by precedent (or maybe I just haven't found the right one yet) is applying it to the 'inter partes reviews' which do not appear to be quite the same thing. It's almost the opposite situation - they're not being sued for patent infringement, instead the patent itself is being challenged.

          This could be quite an interesting case.

          --
          If laughter is the best medicine, who are the best doctors?
          • (Score: 2) by krishnoid on Tuesday September 12 2017, @06:00AM (1 child)

            by krishnoid (1156) on Tuesday September 12 2017, @06:00AM (#566559)

            Settled case law, the court won't even get to the point of examining the patent, it simply has no jurisdiction over the case ...

            Seems like that hasn't stopped governments before [wikipedia.org] -- but maybe that case wasn't an issue of jurisdiction.

            • (Score: 2) by Arik on Tuesday September 12 2017, @06:16AM

              by Arik (4543) on Tuesday September 12 2017, @06:16AM (#566562) Journal
              That was a atrocious attempt, but it does not appear to be on point at all. There were no patent issues, and no direct invocation of sovereignty (Microsoft does not, yet? claim that.) So I'm not sure what the relevance would be.
              --
              If laughter is the best medicine, who are the best doctors?
  • (Score: 2, Touché) by Mykl on Monday September 11 2017, @11:50PM

    by Mykl (1112) on Monday September 11 2017, @11:50PM (#566474)

    Because if you take the St. Regis Mohawk Nation to court for any reason you're objectively a racist.

  • (Score: 5, Interesting) by Arik on Tuesday September 12 2017, @12:51AM (2 children)

    by Arik (4543) on Tuesday September 12 2017, @12:51AM (#566489) Journal
    I suspect you're wrong on that. The status of original nations in the US is not so clear cut. The US courts, in fact, created a new status for them as 'domestic nations' in order to reconcile the various promises that were made to respect their territory and sovereignty with the political reality that we were never going to do anything of the kind, and it's a very complicated legal subject that I'm certainly no expert in. In general, they're hybrid entities, in some ways treated as dependencies or vassals of the federal government, in other ways as sovereigns in their own right.

    Both the drug companies and the Mohawk nation have lawyers and they all appear to believe this is a winning move, so I'm inclined to suspect they may have a better idea of the controlling precedents than you do.
    --
    If laughter is the best medicine, who are the best doctors?
    • (Score: 2) by tfried on Tuesday September 12 2017, @07:18AM

      by tfried (5534) on Tuesday September 12 2017, @07:18AM (#566579)

      Both the drug companies and the Mohawk nation have lawyers and they all appear to believe this is a winning move, so I'm inclined to suspect they may have a better idea of the controlling precedents than you do.

      I am very much not a lawyer, but I would be very much surprised, if that move will actually "win" in the legal sense, in the long run. For starters, whatever their convictions, otherwise, I'm pretty sure court judges will hold a strong believe that the legal system must have a say (one way or the other) over legal matters. So convincing them otherwise is going to be an uphill battle by all means.

      That said, the legal situation does look messy, indeed, and it seems entirely plausible that it could take years to sort out. And a delay is all Allergan needs. They apparently do think it likely that their patent will not hold up to review, but any day the patent is not yet voided nets Allergan more profits.

    • (Score: 0) by Anonymous Coward on Tuesday September 12 2017, @12:09PM

      by Anonymous Coward on Tuesday September 12 2017, @12:09PM (#566699)

      Both the drug companies and the Mohawk nation have lawyers and they all appear to believe this is a winning move

      I agree, this is a winning move for both counsels. For their clients, it doesn't change a thing (I hope).