Supreme Court Cans Allergan’s Tribal Patent Deal

April 23, 2019

The Supreme Court has scotched Allergan’s attempt to hide a patent for one of its blockbuster drugs in a Native Tribe’s reservation—but the case is only different in degree from what has become common practice in the drug industry, a legal expert tells FDAnews.

Allergan transferred its patent to the Mohawk tribe and then “leased” it back from the tribe. Allergan then argued that the patent was subject to the sovereignty of the Mohawk nation and out of the reach of the United States.

“Although Allergan may have been a tad more aggressive, they are not far outside the norm,” says Robin Feldman, professor at the University of California, Hastings and author of a newly released book, “Drugs, Money and Secret Handshakes.”

The Supreme Court declined to hear Allergan’s appeal of a federal appeals court ruling that its licensing agreement with the St. Regis Mohawk Tribe in upstate New York doesn’t protect the patent for dry eye treatment Restasis (cyclosporine ophthalmic emulsion) from challenges by rival drugmakers Mylan, Teva and Akorn.

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