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posted by Fnord666 on Wednesday October 11, @08:56AM   Printer-friendly
from the tighten-the-noose dept.

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

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Allergan Pulls a Fast One 35 comments

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

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


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  • (Score: 2) by bradley13 on Wednesday October 11, @09:41AM (5 children)

    by bradley13 (3053) Subscriber Badge on Wednesday October 11, @09:41AM (#580366) Homepage Journal

    The current situation is just a mess. Whenever a tribe doesn't feel like obeying US laws, they claim sovereignty. But whenever they want something - usually free federal help or programs or money - suddenly they are poor, helpless victims, yet another branch of the FSA.

    Congress really needs to change the law: either the tribes are sovereign, or not. Pick one. If they are sovereign, then they are entirely responsible for themselves. If not, then they are just counties in the states where they are located, and their residents have the same rights, privileges and responsibilities as everyone else.

    --
    Everyone is somebody else's weirdo.
    • (Score: 0) by Anonymous Coward on Wednesday October 11, @11:01AM

      by Anonymous Coward on Wednesday October 11, @11:01AM (#580384)

      Or you could just get some rednecks to finish the job and wipe them out like Christopher Columbus intended.

    • (Score: 2) by RamiK on Wednesday October 11, @11:20AM (1 child)

      by RamiK (1813) on Wednesday October 11, @11:20AM (#580395)

      The current situation is just a mess. Whenever a state doesn't feel like obeying federal laws, they claim sovereignty. But whenever they want something - usually free lands, mineral rights or regulatory protections - suddenly they are poor, helpless victims, yet another branch of the FSA.

      Feels familiar? The real problem is that the US government doesn't want to acknowledge native reservations as federated states for gerrymandering purposes and won't reform and fix the laws and constitution to plug the million and one holes it accumulated over 400 years of technological advancement and spaghetti code. So, every other day you hear about one exploit or the next being exploited to let the rich get richer and the poor, poorer. And the only times something gets done quickly is when money ends up in the hands of the "wrong people".

      --
      compiling...
      • (Score: 0) by Anonymous Coward on Wednesday October 11, @03:10PM

        by Anonymous Coward on Wednesday October 11, @03:10PM (#580503)

        It used the US Government as its role model for its software development practices :)

    • (Score: 0) by Anonymous Coward on Wednesday October 11, @05:51PM (1 child)

      by Anonymous Coward on Wednesday October 11, @05:51PM (#580624)

      If they're properly sovereign they'll probably want their nation back, you can't have it both ways. Be greatful they don't give your blankets back.

      • (Score: 3, Funny) by bob_super on Wednesday October 11, @06:19PM

        by bob_super (1357) on Wednesday October 11, @06:19PM (#580651)

        > Be greatful they don't give your blankets back.

        They've been playing the long game: waiting for Trump to eliminate mandatory vaccination first.

  • (Score: 4, Insightful) by stretch611 on Wednesday October 11, @11:52AM (4 children)

    by stretch611 (6199) on Wednesday October 11, @11:52AM (#580402)

    Shouldn't we just say that we do not have a treaty with the tribes on sharing patents... then not recognize the patent and allow everyone to make a generic? Sounds like a way to make sovereign immunity go away.

    • (Score: 4, Insightful) by Immerman on Wednesday October 11, @05:07PM (2 children)

      by Immerman (3985) on Wednesday October 11, @05:07PM (#580579)

      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, @08:31PM (1 child)

        by stretch611 (6199) on Wednesday October 11, @08:31PM (#580777)

        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.

        • (Score: 2) by Immerman on Thursday October 12, @02:29PM

          by Immerman (3985) on Thursday October 12, @02:29PM (#581141)

          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.

    • (Score: 0) by Anonymous Coward on Wednesday October 11, @06:53PM

      by Anonymous Coward on Wednesday October 11, @06:53PM (#580687)

      Even if there was a treaty, the US has a long history of ignoring those formed with Native Americans.

  • (Score: 0) by Anonymous Coward on Wednesday October 11, @12:09PM

    by Anonymous Coward on Wednesday October 11, @12:09PM (#580409)

    No extra provisions, just closes the loophole.

    It will be great if Congress can still pass something that simple.

  • (Score: 2, Funny) by realDonaldTrump on Wednesday October 11, @12:37PM (3 children)

    by realDonaldTrump (6614) Subscriber Badge on Wednesday October 11, @12:37PM (#580428) Homepage Journal

    It’s very time-consuming to be politically correct, and I don’t like wasting a lot of time. The St. Regis Mohawk Indian record of criminal activity is well documented. I'm not knocking the Mohawks. I'm knocking their record. That’s not because they’re Mohawks. That’s because their record is bad and was proved to be bad. You go up to Connecticut, and you look. Now, they don't look like Indians to me. They don't look like Indians to Indians. To sit here and listen as people are saying that there is no organized crime, that there is no money laundering, that there is no anything, and that a so-called Indian chief is going to tell Joey Killer to please get off his reservation is almost unbelievable to me. People have paper bags over their faces and nobody's looking. Everybody knows what's going on. Why is it that the Indians don't pay tax, but everybody else does? I do. 🇺🇸

    • (Score: 2, Funny) by Anonymous Coward on Wednesday October 11, @02:10PM (1 child)

      by Anonymous Coward on Wednesday October 11, @02:10PM (#580471)

      You should build a wall

      • (Score: 0) by Anonymous Coward on Wednesday October 11, @02:25PM

        by Anonymous Coward on Wednesday October 11, @02:25PM (#580477)

        These are Indians. You should build a Fort.

    • (Score: 0) by Anonymous Coward on Wednesday October 11, @05:54PM

      by Anonymous Coward on Wednesday October 11, @05:54PM (#580630)

      I got halfway through the post before I saw the username. You're getting better, sir. It's a fine line between "contributor" and "troll", and you're walking it better every day.

  • (Score: 2) by sjames on Wednesday October 11, @05:37PM

    by sjames (2882) on Wednesday October 11, @05:37PM (#580615) Journal

    "Restasis" is just 0.05% cyclosporine in an eyedrop. It prevents immune activity in the eye that is thought to be overactive and cause dry eye sometimes. Cyclosporine was isolated in '71 and began use in medicine in the early '80's so it i itself long out of patent. That puts any patents for Restasis on shaky ground at best. It's no wonder they want to protect it from any sort of review.

  • (Score: 2) by HiThere on Wednesday October 11, @06:02PM

    by HiThere (866) on Wednesday October 11, @06:02PM (#580638)

    This particular example is another, of many, examples of how bad current law is.

    Two separate teams of rather high-powered lawyers looked into this and decided that the current laws authorized the action. It's true no judge has yet weighed in on the matter, but it rather looks as if current law does just what they claim. For congress to fix a broken law is the right action.

    I do have a question as to whether this is the right fix. The phrase "lipstick on a pig" comes to mind. It sort of improves things, probably, but not by much.

    --
    Put not your faith in princes.
  • (Score: 2) by DannyB on Wednesday October 11, @06:59PM

    by DannyB (5839) on Wednesday October 11, @06:59PM (#580694)

    How about just get rid of patents.

    But if you would rather have a less efficient and more costly system with that same goal . . .

    Require a public review period before a patent can be granted so that the public can challenge with prior art.

  • (Score: 0) by Anonymous Coward on Thursday October 12, @12:16AM

    by Anonymous Coward on Thursday October 12, @12:16AM (#580868)

    Not to be a cynic, but why is this news? Introducing bills is fairly easy, and is a FAR cry from becoming law. Members of Congress do it all the time for political posturing, especially when they have no chance of passing.

    Case-in-point, the 80 (?) bills the Republicans introduced to kill the Affordable Care Act ("Obamacare") back when they were in the minority, and when they did not control both the house and the Senate.

    It was introduced by a (D-Mo.), which means it has about as much chance of passing the Republican controlled Congress as there is of Donald Trump releasing his tax records.

    If this bill were to get a Republican co-sponsor, it could theoretically be news-worthy. If it were to get out of committee, then it would have a fighting chance of being passed and would be much more news-worthy (assuming people found the substance to be interesting enough to report upon). However, as it stands right now, this is about as note-worthy as Rand Paul introducing a piece of legislation suggesting that America should abolish the Federal Reserve and go to the Gold Standard... maybe even less so.

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