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By Jan Wolfe, quoting Rachel E. Sachs (Academic Fellow Alumna)
Reuters
September 11, 2017

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Challenging patents in federal court is slower and more expensive, though generic companies certainly do it. Teva Pharmaceuticals Inc and other generic drug companies are suing Allergan in federal court seeking a ruling that the latter’s Restasis patents should not have been granted in the first place because they cover obvious concepts.

Michael Carrier, a professor at Rutgers Law School, said drug companies may fear a public outcry if they use tribal immunity to remove their patents from scrutiny by both the board and federal court. A spike in drug prices, for example, could lead Congress to pass a law limiting the scope of that immunity in such cases.

Saunders said the industry is unlikely to try to shield its patents from federal court litigation. “I’d be very cautious about creating this parade of horribles,” he said.

But Rachel Sachs, a patent law professor at Washington University in St. Louis, said it was likely only a matter of time.

“Once the industry begins engaging in a practice, even at a low level ... there are actors who will take it to its logical extreme,” she said. [...]

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