by Sen Claire McKaskill
Folks – this week a federal judge in Texas, while issuing a ruling that invalidated patents on Allergan’s dry-eye medicine Restasis, made some scathing comments about the company’s exploitation of a legal loophole in transferring its patents to the Saint Regis Mohawk Tribe to block challenges—a move opposed by a growing chorus of industries and advocates—that Claire has called “brazen” and introduced legislation to stop:
“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… If that ploy succeeds, any patentee facing IPR proceedings would presumably be able to defeat those proceedings by employing the same artifice… But sovereign immunity should not be treated as a monetizable commodity that can be purchased by private entities as part of a scheme to evade their legal responsibilities… such circumstances are frequently encountered in sham transactions, such as abusive tax shelters.”
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