Court Finds Restasis Patents Invalid, Raises Concerns About Allergan, Mohawk Tribe Agreement image

RAPS, October 16, 2017
Zachary Brennan, quoting Rachel E. Sachs (Academic Fellow Alumna)

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In an 11-page order separate from the one invalidating the Restasis patents for obviousness, US Circuit Judge William Bryson wrote that the court "has serious concerns about the legitimacy of the tactic that Allergan and the Tribe have employed. The essence of the matter is this: Allergan purports to have sold the patents to the Tribe, but in reality it has paid the Tribe to allow Allergan to purchase—or perhaps more precisely, to rent—the Tribe’s sovereign immunity in order to defeat the pending IPR proceedings in the PTO. This is not a situation in which the patentee was entitled to sovereign immunity in the first instance. Rather, Allergan, which does not enjoy sovereign immunity, has invoked the benefits of the patent system and has obtained valuable patent protection for its product, Restasis. 

"What Allergan seeks is the right to continue to enjoy the considerable benefits of the U.S. patent system without accepting the limits that Congress has placed on those benefits through the administrative mechanism for canceling invalid patents," Bryson added.

Rachel Sachs, an assistant professor of law at Washington University in St. Louis, told Focus that the order does not mean that other companies cannot attempt these types of patent transfers with Native American tribes, "but it expresses reservations that should make companies nervous."

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