Amici Views On Big Pharma 'Renting' Sovereign Immunity

By Ben Bourke (January 9, 2018, 12:09 PM EST) -- Since the constitutionality of the review and re-examination proceedings authorized by the America Invents Act was challenged in Oil States Energy Services LLC v. Greene's Energy Group LLC, it seems as though patent owners, courts, government agencies and the public at large have been on a mission to determine what an inter partes review is.[1] This issue recently surfaced in Mylan Pharmaceuticals Inc. v. Saint Regis Mohawk Tribe, IPR2016-001127, et al., involving Mylan's invalidity challenge of a set of patents formerly owned by Allergan PLC that the pharmaceutical company subsequently assigned to St. Regis Mohawk Tribe. Some have labeled the transfer a sham transaction that effectively allows Allergan to "rent" the tribe's sovereign immunity to prevent Mylan and Teva, who was joined in the proceedings, from succeeding in the petition challenging patent protection for Allergan's dry eye solution Restasis....

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