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posted by Fnord666 on Monday September 11, @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

Related Stories

Bill Introduced to Close Allergan's Native American "Sovereign Immunity" Patent Loophole 20 comments

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


Original Submission

Congress Will Investigate Drug Company That Gave Its Patents to Mohawk Tribe 32 comments

Members of Congress want answers about a multinational drug company's deal to save its patents by handing them off to a Native American tribe.

Last month, Allergan gave the St. Regis Mohawk Tribe six patents that protect Restasis, the company's blockbuster eye drug. The goal is a sophisticated legal strategy to avoid having the US Patent Office proceed with a process called inter partes review, which is a kind of quasi-litigation in which opponents of a patent can try to have them revoked. Lawyers for Allergan are hoping that the principle of sovereign immunity, in which Native American tribes are treated as sovereign nations in certain ways, will protect their patents from government review.

The strategy may well succeed. IPR proceedings against patents held by public universities have been canceled on at least two occasions, when the Patent Trial and Appeals Board held that the universities benefit from sovereign immunity because they are state actors. The St. Regis Mohawk tribe will be paid an annual royalty of $15 million as long as the patents are valid.

The move is a legal maneuver to avoid challenges to their patent.

Source: https://arstechnica.com/tech-policy/2017/10/congress-will-investigate-drug-company-that-gave-its-patents-to-mohawk-tribe/

takyon: Allergan.

Previously: Allergan Pulls a Fast One


Original Submission

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  • (Score: -1, Offtopic) by Anonymous Coward on Monday September 11, @10:42PM

    by Anonymous Coward on Monday September 11, @10:42PM (#566448)

    Bitch, we be Dick Niggers.

    That's right, we never fuck no old pussy.

    Shit yeah, we fuck a whole lotta young pussy.

    Dick Niggers gonna desensetize yo nigger allergy with a shot of 100% pure nigger cum tween yo thighs.

  • (Score: 5, Insightful) by ants_in_pants on Monday September 11, @10:44PM (1 child)

    by ants_in_pants (6665) on Monday September 11, @10:44PM (#566450)

    They're sovereign until the government decides it doesn't have to honor treaties with brown people for the umpteenth time.

    --
    -Love, ants_in_pants
    • (Score: 3, Interesting) by Runaway1956 on Monday September 11, @11:24PM

      by Runaway1956 (2926) Subscriber Badge on Monday September 11, @11:24PM (#566464) Journal

      Ants nailed it.

      The reservation west of Buffalo was making a killing with cigarette sales after New York did the progressive thing, and taxed cigarettes at insane rates. The same progressive crowd who wanted to prohibit cigarettes and tobacco use went crazy.

      Senecas Clash With Police Over Tax Ruling
      Published: July 17, 1992

      CATTARAUGUS INDIAN RESERVATION, N.Y., July 16— A tax war between Seneca Indians and New York State grew more divisive today as Indians dropped burning tires off a highway overpass and clashed with state police.

      Thirteen protesters were arrested and at least four state troopers were injured, including the force's commander in western New York.

      About 200 Indians began burning tires and other debris about 7 P.M. Wednesday to protest taxes the state wants to impose on the sale of gasoline and cigarettes at reservations.

      About midnight, protesters started throwing burning debris from an overpass onto the Gov. Thomas E. Dewey Thruway, which borders the Cattaraugus Indian Reservation 30 miles southwest of Buffalo. 30-Mile Stretch Closed
      http://www.nytimes.com/1992/07/17/nyregion/senecas-clash-with-police-over-tax-ruling.html [nytimes.com]

      1996 JR’s Smokeshop begins internet sales of tobacco products on the Cattaraugus Territory. Western Door Enterprises begins internet sales of tobacco products on the Allegany Territory.
      1997 The Onöndowa'ga:' protest New York State’s attempt to collect sales tax on the Allegany and Cattaraugus Territories. They “shut down” Routes 17 and 90 on those territories in protest. The protest ends without serious injuries. The state backs off on the collection of state taxes.

      https://www.senecamuseum.org/Educators/Seneca-History-Timeline.aspx [senecamuseum.org]

      https://ag.ny.gov/press-release/ag-schneiderman-sues-major-contraband-cigarette-dealers-evading-state-taxes [ny.gov]

      http://feathernews.blogspot.com/2008/10/nyc-mayor-sues-to-stop-cigarette-sales.html [blogspot.com]

      --
      This broadcast is intended for mature audiences.
  • (Score: 2) by Fluffeh on Monday September 11, @10:45PM (4 children)

    by Fluffeh (954) Subscriber Badge on Monday September 11, @10:45PM (#566451) Journal

    Given that a patent review would have been approved by a court.. and the owner has now blocked that from happening... is there some sort of recourse for the original court to rule that they are in contempt as they are clearly blocking the courts order to investigate this?

    • (Score: 5, Informative) by PartTimeZombie on Monday September 11, @10:55PM (3 children)

      by PartTimeZombie (4827) on Monday September 11, @10:55PM (#566458)

      From the article:

      “The validity of your patents is subject to review, unless you pay off some Indian tribe” does not seem like a good way to run an intellectual property system.

      Corporations have been pulling slimy tricks like this for ages, East Texas comes to mind. There's not much difference between paying some Indian tribe off and filing cases in East Texas.

      IANAL but it looks to me that the whole patent system is set up so that those with the deepest pockets get what they want.

      • (Score: 5, Insightful) by RS3 on Tuesday September 12, @01:22AM (2 children)

        by RS3 (6367) on Tuesday September 12, @01:22AM (#566494)

        IANAL but it looks to me that the whole patent system is set up so that those with the deepest pockets get what they want.

        FTFY

        • (Score: 0) by Anonymous Coward on Tuesday September 12, @01:10PM (1 child)

          by Anonymous Coward on Tuesday September 12, @01:10PM (#566708)

          ok so which political party can we blame? I want to make sure I make condescending comments about the wrong side before anyone else does.

          • (Score: 0) by Anonymous Coward on Tuesday September 12, @02:41PM

            by Anonymous Coward on Tuesday September 12, @02:41PM (#566750)

            ok so which political party can we blame?

            yes

  • (Score: 5, Insightful) by Anonymous Coward on Monday September 11, @10:48PM (10 children)

    by Anonymous Coward on Monday September 11, @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.

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

      by vux984 (5045) on Monday September 11, @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, @01:54AM (4 children)

        by bob_super (1357) on Tuesday September 12, @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, @02:45AM (3 children)

          by vux984 (5045) on Tuesday September 12, @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, @04:47AM (2 children)

            by Arik (4543) on Tuesday September 12, @04:47AM (#566548)
            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.

            --
            "Unix? These savages aren't even circumcised!"
            • (Score: 2) by krishnoid on Tuesday September 12, @06:00AM (1 child)

              by krishnoid (1156) on Tuesday September 12, @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, @06:16AM

                by Arik (4543) on Tuesday September 12, @06:16AM (#566562)
                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.
                --
                "Unix? These savages aren't even circumcised!"
    • (Score: 2, Touché) by Mykl on Monday September 11, @11:50PM

      by Mykl (1112) on Monday September 11, @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, @12:51AM (2 children)

      by Arik (4543) on Tuesday September 12, @12:51AM (#566489)
      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.
      --
      "Unix? These savages aren't even circumcised!"
      • (Score: 2) by tfried on Tuesday September 12, @07:18AM

        by tfried (5534) on Tuesday September 12, @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, @12:09PM

        by Anonymous Coward on Tuesday September 12, @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).

  • (Score: 3, Funny) by bob_super on Monday September 11, @10:50PM (3 children)

    by bob_super (1357) on Monday September 11, @10:50PM (#566456)

    [editors, fix Allergen/Allergan, thanks]

    Definitely a smart if extremely stinky move.
    In a country where the white supremacists have been a bit exalted recently, is there now an Indian threat, or is it the Indians to the rescue of businesses against bad judges? Watch heads explode live today!

    • (Score: 0) by Anonymous Coward on Monday September 11, @11:34PM (2 children)

      by Anonymous Coward on Monday September 11, @11:34PM (#566467)

      Allergen, noun, any substance, often a protein, that induces an allergy. Common allergens include pollen, grasses, dust, pharmaceuticals, and some corporations that make them.

      • (Score: 2) by bob_super on Tuesday September 12, @01:51AM (1 child)

        by bob_super (1357) on Tuesday September 12, @01:51AM (#566498)

        Original sub: https://soylentnews.org/submit.pl?op=viewsub&subid=22222 [soylentnews.org]
        Now fixed by our brave strong fearless editors

        • (Score: 0) by Anonymous Coward on Tuesday September 12, @03:07AM

          by Anonymous Coward on Tuesday September 12, @03:07AM (#566520)

          Some people have no sense of humor.

  • (Score: 2) by krishnoid on Monday September 11, @10:51PM

    by krishnoid (1156) on Monday September 11, @10:51PM (#566457)

    Not as fast as purported, but pretty fast nonetheless [discovery.com]. An "Allergen" that triggers that kind of response can just ride the wave.

  • (Score: 1, Insightful) by Anonymous Coward on Tuesday September 12, @04:20AM (3 children)

    by Anonymous Coward on Tuesday September 12, @04:20AM (#566539)

    This must be some sort of USA or medical field specific topic.
    What the heck is Allergan?
    What the heck is Restasis?
    Why would I care?

  • (Score: 2) by bradley13 on Tuesday September 12, @07:42AM (1 child)

    by bradley13 (3053) Subscriber Badge on Tuesday September 12, @07:42AM (#566591) Homepage Journal

    The Indian nations are sovereign when it suits them, but happy to suck off the federal teat when it doesn't.

    Collective guilt only goes so far. The Indian nations either need to become truly sovereign, and take full responsibility for themselves. Or this sham sovereignty needs to be eliminated entirely. Pick one.

    --
    Everyone is somebody else's weirdo.
    • (Score: 0) by Anonymous Coward on Tuesday September 12, @01:55PM

      by Anonymous Coward on Tuesday September 12, @01:55PM (#566727)

      but... they were soverign before being enlightned people with guns rounded them up and put them on crummy land. perhaps you can help arm their resistance and re-establish their control of the US?

      i forgot, you andrew jackson supporters like to blame victims for their problems. with white supremacy comes white man's burden, and i feel sorry for you.

  • (Score: 1, Troll) by realDonaldTrump on Tuesday September 12, @07:58AM

    by realDonaldTrump (6614) Subscriber Badge on Tuesday September 12, @07:58AM (#566600) Homepage Journal

    I'll tell you what. If you look, if you look at some of the reservations that our government has approved, that it, in its great wisdom has approved, I will tell you right now -- they don't look like Indians to me. And they don't look like the Indians. Now, maybe we say politically correct or not politically correct, they don't look like Indians to me, and they don't look like Indians to Indians. And a lot of people are laughing at it. And certain people are telling me how tough it is and how rough it is to get approved. Well, you go to Connecticut and you look. Now, they don't look like Indians to me. Only Indians can have the reservations, only Indians can have the gaming. Why can't everybody? It's discriminatory. Why is it that the Indians don't pay tax, but everybody else does? I do. Sometimes I do. 🇺🇸

  • (Score: 1) by r_a_trip on Tuesday September 12, @01:14PM

    by r_a_trip (5276) on Tuesday September 12, @01:14PM (#566709)
    I don't see how this changes anything. Is it a US patent, granted by the US patent office? Then it doesn't matter which nation is the rights holder of the patent. Review that thing and invalidate if warranted. If invalidated, the drug itself becomes generic on US controlled soil. If the St. Regis Mohawk Indian Nation wants to uphold the patent, that is their business, but it will only mean they can't import the generic drug into their territory.
  • (Score: 2) by EvilSS on Tuesday September 12, @01:37PM

    by EvilSS (1456) on Tuesday September 12, @01:37PM (#566717)

    Why would one do such a thing? Well, it turns out that whatever patented IP owned by the tribe is protected from inter partes review challenges by their sovereign immunity. The Mohawks are, then, immediately moving to dismiss the PTO’s actions.

  • (Score: 0) by Anonymous Coward on Tuesday September 12, @10:26PM (1 child)

    by Anonymous Coward on Tuesday September 12, @10:26PM (#566989)

    Allergan's press release [streetaccount.com] mentions two cases that the company sees as favorable: Covidien LP v. University of Florida Research Foundation Inc. and Neochord, Inc. v. University of Maryland. A case they didn't mention is Reactive Surfaces Ltd., LLP, v. Toyota Motor Corp.. [ptabwatch.com] I see in a cursory look that there was a ruling "that sovereign immunity under the Eleventh Amendment may be asserted in inter partes review proceedings," so it also seems favorable to Allergan and the St. Regis nation.

    • (Score: 0) by Anonymous Coward on Wednesday September 13, @11:05AM

      by Anonymous Coward on Wednesday September 13, @11:05AM (#567168)

      The press release lists six patents that were transferred.

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