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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.


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  • (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.

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  • (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?