A U.S. Senator is seeking to close the patent loophole used by the pharmaceutical company Allergan:
Allergan's move to stop its patents from being reviewed by handing them off to a Native American tribe is winning support from few people outside the drug company. Now one lawmaker is seeking to ban it.
Sen. Claire McCaskill (D-Mo.) has introduced a bill (PDF) that would head off Allergan's strategy without waiting to see whether the judges at the Patent Trial and Appeals Board will even approve it. "This is one of the most brazen and absurd loopholes I've ever seen, and it should be illegal," McCaskill said last week in a statement to a pharmaceutical lobby group.
The Native American patent shelter, promoted by Allergan's outside law firm, seeks to avoid the process of "inter partes review," or IPR, for the patents protecting the blockbuster drug Restasis. The IPR process is a kind of quasi-litigation that takes place at the Patent Trial and Appeals Board for the sole purpose of determining whether a patent is valid or not. Now that the Restasis patents are owned by the St. Regis Mohawk tribe and licensed back to Allergan, the drug company's lawyers have asked for an impending IPR to be dismissed. The tribe argues that it's protected from IPRs by "sovereign immunity."
Previously: Allergan Pulls a Fast One
Congress Will Investigate Drug Company That Gave Its Patents to Mohawk Tribe
(Score: 4, Insightful) by Immerman on Wednesday October 11 2017, @05:07PM (2 children)
Seems like it should be even simpler - is this a US patent they want enforced in the US? Then it shouldn't matter who owns it - it's the validity of the patent that is "on trial", not the owner.
(Score: 2) by stretch611 on Wednesday October 11 2017, @08:31PM (1 child)
Many of the treaties we sign with foreign countries include provisions to cover intellectual property. We agree to recognizes patents. This is why the IP clauses within certain treaties are cause for concern over copyrights.
However, I doubt we are as thorough with our agreements with native indian's sovereign rights.
Now with 5 covid vaccine shots/boosters altering my DNA :P
(Score: 2) by Immerman on Thursday October 12 2017, @02:29PM
It would also seem not to be relevant to the case at hand. So far as I'm aware you can't transfer a patent between jurisdictions - the US may respect German patents, but it's still a German patent subject to German law, you can't just transfer it to the US.
Similarly if Allergan wanted to get a Mohawk(ian?) patent, and we have patent recognition treaty with them, then that wold be one thing - but that's not at all what they're trying to do.