Michael Carrier, a professor at Rutgers Law School, says drug companies may fear a public outcry if they use tribal immunity to remove their patents from scrutiny by both the board and federal court. A spike in drug prices, for example, could lead Congress to pass a law limiting the scope of that immunity in such cases.
Saunders notes the industry is unlikely to try to shield its patents from federal court litigation. “I’d be very cautious about creating this parade of horribles,” he says.
But Rachel Sachs, a patent law professor at Washington University in St. Louis, says it was likely only a matter of time.
“[After] the industry begins engaging in a practice, even at a low level … there are actors who will take it to its logical extreme,” she says.
Reference
- Allergan Plc. News release: Allergan and Saint Regis Mohawk Tribe announce agreements regarding Restasis patents. 2018 Sep 8.
