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US Congress Investigates Patent 'Gifts' That Evade Inter Partes Review (arstechnica.com)
AnalogDiehard writes: Congress created the Inter Partes Review (IPR) in 2012 within the U.S. Patent Office Patent Trials and Appeals Board (PTAB) as a faster and cheaper way to challenge and invalidate bad patents. The IPR expense is a fraction of the cost of a multimillion dollar patent court trial; it is loved by patent challengers and hated by patent owners. The pharmaceutical company Allergen has exploited a novel tactic to evade the IPR process: they hand them to a Native American Indian tribe for safekeeping. Under the arrangement, the tribes earn millions in royalties as long as the patents are valid, they license them back to Allergan, and the patents under the tribes' ownership is immune from lawsuits via sovereign immunity. Under the colonial-era concept of "sovereign immunity" which is codified in the 11th amendment, certain groups like states, universities, and tribes are immune from lawsuits, thus the drug patents are shielded from the IPR process leaving only a full blown multimillion dollar court trial for generic drug companies. This tactic is also attracting the attention of non-practicing entities -- the polite term for "patent trolls" -- and one such NPE company has already exploited sovereign immunity with the intention to sue Apple for infringement.
But court cases have limited the scope of sovereign immunity (especially for commercial activity), and now Congress is investigating Allergan over the tactic that has Congress not only greatly concerned about competition in the drug industry (and exorbitant prices of pharmaceuticals), but also the questionable use of the sovereign immunity law. The four lawmakers who signed the letter to Allergan state: "The unconventional maneuver has received considerable criticism from the generic competitors challenging the drug's patents under the process Congress created (IPR) to enable timelier review of such challenges (read: a fraction of the cost of a court trial)." The letter also notes that the key ingredient in the patent was set to expire in 2014 and that Allergan had filed more patents to extend patent protection to 2024, a signal that Congress is watching for exploitation of patent law to enable "perpetual patents" widely used by the pharmaceuticals.
But court cases have limited the scope of sovereign immunity (especially for commercial activity), and now Congress is investigating Allergan over the tactic that has Congress not only greatly concerned about competition in the drug industry (and exorbitant prices of pharmaceuticals), but also the questionable use of the sovereign immunity law. The four lawmakers who signed the letter to Allergan state: "The unconventional maneuver has received considerable criticism from the generic competitors challenging the drug's patents under the process Congress created (IPR) to enable timelier review of such challenges (read: a fraction of the cost of a court trial)." The letter also notes that the key ingredient in the patent was set to expire in 2014 and that Allergan had filed more patents to extend patent protection to 2024, a signal that Congress is watching for exploitation of patent law to enable "perpetual patents" widely used by the pharmaceuticals.
> Sovereign immunity prevents states from being sued in federal court unless they agree to the suit.
So, just do like law enforcement does with civil forfeiture -- Don't use the tribes/states, sue the patent. The patent itself has no sovereign immunity.
> The IPR process, which went into effect in 2012, is a kind of mini-litigation system that takes place before the Patent Trial and Appeals Board (PTAB), rather than in district courts.
Alternatively, stop calling it a "mini-litigation system" and instead call it "binding arbitration". We already know that companies can force you to give up your rights to litigate, if you want to do business with them. The US Patent and Trademark Office can simply say, if you want to do business with us (get a patent), you must agree to "arbitrate" your patent or you don't get one. So sorry.
Don't get me wrong, the red man has taken it up the ass. Once the sole proprietor of a mighty hemisphere, he's now hawking gambling, cut rate cigarettes and and has-been rock bands after the white man fucked him over but good.
But this sovereign tribe thing is BS. You want to hold the patent? Fine, then it's only valid on the reservation. Unless the patent violation occurs on tribal land, you're outside your sovereign territory and authority.
If you want to wave your sovereignty around, do something brave. Legalize pot and tell the state legislature to fuck off.