Native Tribes as Patent Shields

Pharmaceutical company Allergan introduced a novel idea perhaps not long for this world

When companies receive a challenge to their intellectual property, it’s not unreasonable to expect them to go into fight or flight mode.

That might be the easy explanation for why, in order to protect its patents, pharmaceutical company Allergan, decided that rather than being exposed to a process in the U.S. Patent and Trademark Office that allows for speedy patent challenges, they took their patents outside of U.S. jurisdiction entirely. The company sought to protect its patents by putting them under the protection of tribal sovereignty.

Although creative, the move is sure to be challenged in the courts and has drawn bills in Congress as recently as Thursday intended to block the practice. But if Allergan were to withstand such challenges, it could open up a whole new tribal industry.

Allergan, a global pharmaceutical company, in September transferred its patents for dry eye relief product Restasis to the Saint Regis Mohawk Tribe. The move was designed to protect its patents by relying on the tribe’s sovereign immunity, similar to how casinos open in tribal territory that operates under its own set of gambling laws.

To read this story and other complete articles featured in the October 9, 2017 print edition of Law Week Colorado, copies are available for purchase online.