Allergan Pulls a Fast One: Patents Transferred to Indian Tribe | Hacker News Reader

Allergan Pulls a Fast One: Patents Transferred to Indian Tribe

blogs.sciencemag.org

69 pointsQUFB19 comments

Some earlier discussion on an article in the Times:

https://news.ycombinator.com/item?id=15206796

I really hope that the USPTO says something akin to "You cannot transfer US patents to any other country or sovereignty. As such we're taking your 'transfer' as having abandoned the patent in question. This decision is final."

Punch em in the nose just once and that'll teach em to be much more careful about being scum.

That would entail the USPTO making up new law on the spot, which it can't do. Not to mention the fallout for multi-national companies, or US companies legitimately selling patents to foreign entities.

This is a problem for Congress to solve - they created the mess with bad laws, now they need to fix them.

I wouldn't put the blame on Congress for passing a "bad law" for this one. The Hatch-Waxman Act predates Seminole Tribe of Fla. v. Florida and its clear statement rule by more than a decade. And it's been more than 20 years since that case and apparently the evil geniuses at Allergan's law firm are the first to notice how the two combine to create this loophole.

When people complain about software patents, a typical response is "modern patent law really was designed for pharmaceuticals" and that the brokenness for software was more-or-less an accidental side effect. But stories like this make it seem doubtful that patent law makes that much sense in the drug industry either. I guess if this ploy works everyone will call it a loophole, not a design feature of the law. But still...

The problem is not with patent law here, it's sovereign immunity for tribes being used to protect IP after it's expired.

The problem is also with patent law. (Intellectual) property is theft, etc.

My understanding is that the patent hasn't expired, but is under threat from prior art.

Transferring it to a tribe during the lawsuit sounds...risky, but I can see future IP using the approach from the start, like government contractors.

On the other hand, it's a stinky loophole that might be shut down immediately. Probably not, though; there's money on both sides.

In principle (ignoring whether it's a good strategy) could the tribe simply keep all the money? So the choice is, make $15 million per year until 2024, and possibly more from other deals (but other tribes are going to get into this and start a race to the bottom) OR make $1 billion per year until 2024, and no one else will ever make this deal with you.

The way I read this is that Allergan is making a lump sum payment, and then ongoing annual royalties beyond that. That makes sense to me, as the money is coming from the sales of Restasis at inflated/uncompetitive pricing.

the tribe doesn't have the ability to manufacture, market, and distribute the drug. the best they could do is sell the patent back to a competitor. which is doable, but probably expensive, because allergan would stop at nothing to re-gain that patent (i.e. lawyers).

Patents are government granted monopolies. When you create monopolies on intangibilities, you get results like this, where monopoly owners do what they can to keep and extend their monopolies, as the framers of the Constitution anticipated.

The problem is beyond one company's or sovereign nation's actions. What they're doing is likely legal, which suggests the law is the problem.

The problem is a system that creates monopolies out of ideas, enforced by law.

I wonder how Indian tribes will feel once people start voting to end any of the immunity that allows for these tricks?

Both the tribes and IP owners are going to be on the other side of that vote.

That would probably be difficult. Ending their sovereignty is not a solution that's feasible (it would likely take a constitutional convention, and agreement from the tribes in question, else we would basically have just invaded them like Russia did with Ukraine). However preventing American companies from selling patents to them is pretty easy. To put it simply, the solution is not screwing around with the tribes' "immunity", it's regulating the industries.

You are basically saying people should vote to annex the land of a people we basically already committed genocide against... do you really want to open that can of worms?

>it's regulating the industries.

This fixes only one of the problems caused by the immunity.

>You are basically saying people should vote to annex the land of a people we basically already committed genocide against... do you really want to open that can of worms?

Yes, I am suggesting that. The amount of corruption, abuse, and other problems are sufficient even before we get to legal abuses like this.

And if we want to bring up past wrongs, that gets messy really fast. What tribe actually has a fair claim to the land they own that they didn't steal from some earlier tribe?

> This fixes only one of the problems caused by the immunity.

Again, it's not immunity. It's sovereignty, which manifests as immunity (this distinction is important, it's like saying the problem is the smoke, and not the fire that causes it).

The tribes are recognized as federal entities at the level of states. Any violation of that sovereignty has consequences. State universities and colleges for example own patents under similar laws.

Also you probably can't strip their immunity without a constitutional convention and multiple 2/3 votes. Because it's sovereignty, it would be like voting whether California is still a state, or whether states can regulate the companies they incorporate.

> And if we want to bring up past wrongs, that gets messy really fast. What tribe actually has a fair claim to the land they own that they didn't steal from some earlier tribe?

Well often it isn't their ancestral land that they live on anymore anyway. But some tribal claims go back thousands of years one specific tribe near my hometown has been inhabiting the region for 8,000 years [0]. Not that I am claiming there was no violence, but there was a lasting culture, not unlike similar ancient city states, that stayed in the region.

Our still existing government committed a genocide against these peoples. This isn't just about stealing their land, it's about breaking many many treaties, murdering them, sterilizing them, forcing them to abandon their culture, destroying their culture, and plenty of other terrible things. It's war taken to a different level.

And you want to break another agreement through tyranny of the majority? Thank goodness it's way harder than that. If you really want to end corruption and abuse (of power; it's not like they are torturing anyone) around the tribes, convince them to trust us enough to give up those powers themselves. We have slowly been working on that trust in my hometown, it's a long road. Good luck.

[0] https://en.wikipedia.org/wiki/Lower_Elwha_Klallam_Tribe

>It's sovereignty, which manifests as immunity

The immunity is the problem. If there are ways to fix the immunity while keeping the sovereignty then those would be potentials solutions.

>But some tribal claims go back thousands of years one specific tribe near my hometown has been inhabiting the region for 8,000 years

Maybe I missed it in the wikipedia article, but proof that village has been inhabited for millennia isn't proof that the same group had ownership the entire time. There are plenty of cities in Europe which one can look at to see this.

Also, it didn't include the strong evidence of a lasting culture.

>We have slowly been working on that trust in my hometown, it's a long road. Good luck.

Sorry, I'm not one for standing by while abuse happens. If I ever get the chance to stop the abuse, I'll take it. If that means voting for someone who ends the immunity, so be it.

> The immunity is the problem. If there are ways to fix the immunity while keeping the sovereignty then those would be potentials solutions.

That effect, in this case, places like state universities.

> Maybe I missed it in the wikipedia article, but proof that village has been inhabited for millennia isn't proof that the same group had ownership the entire time. There are plenty of cities in Europe which one can look at to see this.

> Also, it didn't include the strong evidence of a lasting culture.

They found an 8,000 year old site via the oral history of the tribe. The culture they passed down through oral tradition includes this site as a holy place, including it's location (that was submerged by the Elwha dams, so current elders had never visited it before). Archeologists found artifacts related to the use of the site as a place of worship dating back 8,000 years. This strongly implies the same culture has been using this site for worship for 8,000 years. If any other group did take over the village, their culture changed substantially enough to include this holy site, implying at least a merger, not a genocide.

> Sorry, I'm not one for standing by while abuse happens. If I ever get the chance to stop the abuse, I'll take it. If that means voting for someone who ends the immunity, so be it.

Then you are just going to encourage more abuse. You are trying to fix the symptom, not the problem. You probably still see a compromise in only voting for the two biggest parties. When both abuse their power.

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