
Allergan Pulls a Fast One: Patents Transferred to Indian Tribe - QUFB
http://blogs.sciencemag.org/pipeline/archives/2017/09/11/allergan-pulls-a-fast-one
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stablemap
Some earlier discussion on an article in the Times:

[https://news.ycombinator.com/item?id=15206796](https://news.ycombinator.com/item?id=15206796)

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ShakataGaNai
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.

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djrogers
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.

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bradleyjg
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.

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dzdt
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...

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

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mcguire
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.

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defen
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.

~~~
S_A_P
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.

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spodek
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.

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

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SolarNet
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?

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BearGoesChirp
>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?

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SolarNet
> 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](https://en.wikipedia.org/wiki/Lower_Elwha_Klallam_Tribe)

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BearGoesChirp
>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.

~~~
SolarNet
> 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.

