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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.
takyon: Allergan.
Previously: Allergan Pulls a Fast One
(Score: 4, Informative) by NewNic on Thursday October 05 2017, @05:38PM (4 children)
The patents are not *registered* in a foreign nation, merely owned by a foreign nation.
The stupidity here is that the IPR process is unable to review patents that are owned by a state actor. Why is this? I can only imagine that this piece of idiocy was put into the law by some crafty lobbyist with the future use of this particular trick in mind.
lib·er·tar·i·an·ism ˌlibərˈterēənizəm/ noun: Magical thinking that useful idiots mistake for serious political theory
(Score: 3, Insightful) by RamiK on Thursday October 05 2017, @06:59PM
I'm guessing the thinking was that state actors wouldn't own patents in the first place seeing how patents weren't a tax system, a regulatory measure or even made with international treatises in mind. Richard Stallman made a similar mistake when the original GPL was put together without a patent disclaimer since they didn't believe in software patents.
The worst of it is that IP for American corporations is like crack cocaine. They can't get enough of it but it's slowly killing them as they become reliant on local regulatory protections and stop competing at the world stage. From automobile to Apple, eventually, they become parasites on the economy and the people as they block foreign competition while gouging prices until they collapse in one manner or the next.
compiling...
(Score: 0) by Anonymous Coward on Thursday October 05 2017, @07:02PM
This is exactly the problem. Ownership of a patent should be irrelevant to the process of reviewing or enforcing the patent. The US patent system is seriously broken.
(Score: 3, Insightful) by Arik on Friday October 06 2017, @03:32AM (1 child)
It's a nasty problem, clearly it's getting big enough profile congress will feel compelled to 'do something' and of course when that happens they normally do something stupid :(
Ultimately, the root problem has little to do with sovereign immunity, or with some tribe trying to make a little money by exploiting the legal system that's been imposed on them. It has to do with patents being issued for just about anything, with little to no meaningful review, by an office that's been encouraged to see its job as simply processing applications and issuing patents, under statutes written by and for the patent lawyers, under the assumption that patents themselves are valuable things, 'drivers of innovation' and the economy etc. and so the more of them we make the better.
If laughter is the best medicine, who are the best doctors?
(Score: 2) by NewNic on Friday October 06 2017, @05:38PM
Sovereign immunity works both ways. The US government can also invalidate a patent that is owned by another sovereign state.
But this really isn't a case of sovereign immunity. This is a case of the powers that the patent office has.
If a sovereign state owns a patent, it should be required to defend it.
lib·er·tar·i·an·ism ˌlibərˈterēənizəm/ noun: Magical thinking that useful idiots mistake for serious political theory