Pharma giant Allergan pays Mohawk tribe to serve as human shields against patent challenges


#1

Originally published at: https://boingboing.net/2017/09/13/berniecare-now-please.html


#2

Can they instead take the initial money, transfer the patent to public domain and claim sovereign immunity if Allergan tries to sue them? They lose out on the royalties, but get a lot better publicity.


#3

Wow. It’s like tax-domiciling, only it’s patent-domiciling.


#4

Because past deals have always gone so well for Native Americans


#5

I don’t see why you couldn’t reverse the scenario to invalidate the patent. Sure, it would be risky, but maybe set up a shell corporation that intentionally violates the patent, then it’s on the tribe to sue and the patent can be invalidated in that proceeding.


#6

HA! That is so fucking ironic. Indian tribes for decades were getting fucked over in every court they contested government actions. Some of them took American citizenship to be afforded the same rights, and it didn’t work.


#7

How can you transfer a US patent to a sovereign nation?


#8

I am not a lawyer, but patents, like copyrights, appear to be transferable assets, and a governmental entity is absolutely capable of acquiring and holding assets.


#9

It’s ownership, not jurisdiction.


#10

This seems like a dangerous gambit. The band may have immunity, but the patent itself does not. The patent is a grant from the government. If Allergan transferred the patents to circumvent legal scrutiny I would think the government could move to revoke the patent. Then the patent would have to undergo harsh legal scrutiny anyway.


#11

OK - so I read the article and still unclear the reasoning behind this. They aren’t trying to protect it from the government - they already issued it. Is it to protect them from patent troll? That seems to be a real issue in some circles. Is it to protect them from real challengers to the patent?

Granted a shield will protect against both bogus and legit claims. But which is it? If it’s patent trolls, I have a hard time getting to upset here. If its a crappy patent that might be contested, then hiding behind your “big brother” after you started a fight isn’t something I can condone.

Of course, if the US patent office took a lot more care on who they gave out patents too, and we cracked down on patent trolls, this wouldn’t even have been thought of.


#12

Although I am merely a tonsorial mohawk, I’m inclined to applaud any scheme that enriches American Indians at the expense of Big Pharma.


#13

Well that’s the problem. You can’t make it meaningfully harder (or impossible) for ‘patent trolls’ without at the same time making it harder to bring legitimate claims.


#14

So would I be if it weren’t for the likelihood that all this sort of thing will ultimately achieve is the further erosion of what legal sovereignty the US pretends to allow Native Americans.


#15

As I understand it (and the mysteries of patent law in the US are just that to me) the gambit is intended to protect only against one specific way of challenging a patent. One can still challenge the validity of the patent in the old-fashioned way. This just protects against the 'inter partes review ’ method.

I think the logic is much as you said - proceedings against the tribe might be subject to immunity, proceedings alleging that the Patent Office shouldn’t have granted the patent in the first place wouldn’t be.


#16

"Allergan CEO Brent Saunders addressed a Wells Fargo healthcare conference last weekend,"
There’s that name again. Why am I not surprised.


#17

I wonder if the tribe knew if they were being offered to hold the patent for them, that it was suspicious, because this just reeks of corruption


#18

This will not end well; the question is for whom.


#19

Or can you…

A regulatory regime incorporates a model of reality, not reality itself. If the model of reality incorporates assumptions we now know to be false, the regulatory regime can and should be redesigned.


#20

I’m sure there’s a deep and very interesting point in there somewhere but I’m afraid it has gone whooshing past the landing-pad of comprehension and into the mire of obscurity.

In other words: wut?