by Dennis Crouch
It appears that Allergan’s attorneys have been working overtime. In a bold move, Allergan has transferred title to all of its Restasis patents to the Saint Regis Mohawk Tribe. I don’t know if I’m laughing or crying, but there’s not a dry eye in the house.
The move is designed to prop the patents up against challenge via a tribal sovereign immunity claim. (Several of the transferred patents are being challenged before the PTAB in AIA Trials). Parallel claims have been quite successful for public universities in fending of both IPR and declaratory judgment lawsuits – even when the patents are exclusively licensed to commercial entities. In fact, this is one reason why public universities almost never sell their patent assets, but instead merely license them. Of course, a major difference with the university situation is that the university patents are the outcome of original university research. In Allergan’s case one question will be whether the ownership structure creates a sham that can be pierced as if a fraudulent corporate veil. I’m confident, however, that Allergan’s lawyers worked through the analysis. One element of the potential sham – the Tribe reports that it is being paid $13.75 million to buy the patents and will receive up to $15 million in annual royalties.
Allergan is a frequent player of jurisdictional games. Its corporate “headquarters” is in Dublin for the tax benefits, although it is “actually” sited in New Jersey.
Patents involved: United States Patent Nos. 8,629,111; 8,633,162; 8,642,556; 8,648,048; 8,685,930 and 9,248,191.
Time for a fix of patent law: The application for a patent and/or assignment of a patent/patent application should by law constitute an express waiver of any defense of immunity (sovereign, tribal, etc.) in any action directly relating to the patent/patent application. A patent/patent application is a res, a thing – each is the same thing for all relevant practical purposes – regardless of the assignee/applicant/owner.
Anyone still following this issue may want to catch Paul R. Jones’ continued avoidance of the actual law at hand at:
link to ipwatchdog.com
“Tribe reports that it is being paid $13.75 million to buy the patents ”
Could someone flesh that out a bit? Is the tribe acting as a personal shopper? Who is paying the tribe to buy the patents?
Allergan, belike.
Their business strategy, which makes you laugh till you cry, obviates the need for their product.
Great sarcasm
Yes, but Dennis said it first, and better:
“I don’t know if I’m laughing or crying, but there’s not a dry eye in the house.”
PRJ – How do you square your view with the Lone Wolf, Nice, and Iron Crow decisions? Do you see those decisions purely as solving questions of tribal court jurisdiction?
Hokie2Hoya: Lone Wolf v. Hitchcock, 187 U.S. 553 (1903); United States v. Nice, 241 U.S. 591 (1916); and Iron Crow v. Oglala Sioux Tribe of Pine Ridge Reservation, 231 F.2d 89 (8th Cir.1956). To answer the second part of your question: “Do you see those decisions purely as solving questions of tribal court jurisdiction?” does not exist under the United States Constitution as there is no such thing as ‘tribal court jurisdiction’ found anywhere in the Constitution and Congress has no Constitutional authority to create such.
Assuming these are the referenced court cases in your post, the United States Constitution itself makes Title 25-INDIANS null upon achieving U.S./State citizenship:
1. The Indian Citizenship Act of 1924 made the first two Lone Wolf v. Hitchcock, 187 U.S. 553 (1903); United States v. Nice, 241 U.S. 591 (1916)…null under Stare Decisis
2. Iron Crow v. Oglala Sioux Tribe of Pine Ridge Reservation, 231 F.2d 89 (8th Cir.1956) has no Constitutional authority to exist under any common law-state or federal-passed by Congress as Title 25-INDIANS under which the alleged dispute falls does not exist under the United States Constitution…in short, you cannot provide any Statute at Large whereby Congress has Constitutional authority to this pass common law: Title 25-INDIANS as there are no more “Indians” within the original meaning of the Constitution post The Indian Citizenship Act of 1924. There is no such authority anyone can provide for the establishment of an “Indian reservation” post The Indian Citizenship Act of 1924 whereby land owned by the People of the United States with rare exception is set aside for the exclusive use of a select group of U.S./State citizens because of their “Indian ancestry/race” absent an Amendment to the Constitution making their health, welfare, safety and benefits distinguishable from all other non-Indian U.S./State citizens because of the ‘others’ “Indian ancestry/race.”. Nothing in the Constitution provides authority for Congress to exercise ‘plenary power’ over any U.S./State citizen turning on their “Indian ancestry/race” (or any race for that matter) absent an Amendment to do so ( See Adarand). State Decisis foreclosed the use of any court decision pre-The Indian Citizenship Act of 1924 post that date in court as such decisions are no longer applicable.
These SCOTUS decisions affirm that once U.S./State citizenship is achieved, politicians-state and federal-have no authority to ‘enlarge or abridge’ one’s citizenship:
1. United States Supreme Court AFROYIM v. RUSK, (1967) No. 456 Argued: February 20, 1967 Decided: May 29, 1967
“(a) Congress has no express power under the Constitution to strip a person of citizenship, and no such power can be sustained as an implied attribute of sovereignty, as was recognized by Congress before the passage of the Fourteenth Amendment; and a mature and well-considered dictum in Osborn v. Bank of the United States, 9 Wheat. 738, 827, is to the same effect. Pp. 257-261.
(b) The Fourteenth Amendment’s provision that “All persons born or naturalized in the United States . . . are citizens of the United States . . .” completely controls the status of citizenship and prevents the cancellation of petitioner’s citizenship. Pp. 262-268”
2. United States Supreme Court OSBORN v. BANK OF U.S., (1824) No. 80
Argued: Decided: March 19, 1824
“A naturalized citizen is indeed made a citizen under an act of Congress, but the act does not proceed to give, to regulate, or to prescribe his capacities. He becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature, is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual. The constitution then takes him up, and, among other rights, extends to him the capacity of suing in the Courts of the United States, precisely under the same circumstances under which a native might sue. He is [22 U.S. 738, 828] distinguishable in nothing from a native citizen, except so far as the constitution makes the distinction. The law makes none.”
3. “An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.” [Norton v. Shelby County, 118 US 425 (1885)]
4. United States Supreme Court
ADARAND CONSTRUCTORS, INC. v. PENA, (1995) No. 93-1841 Argued: January 17, 1995 Decided: June 12, 1995:
JUSTICE SCALIA, concurring in part and concurring in the judgment.
I join the opinion of the Court, except Part III-C, and except insofar as it may be inconsistent with the following: In my view, government can never have a “compelling interest” in discriminating on the basis of race in order to “make up” for past racial discrimination in the opposite direction. See Richmond v. J. A. Croson Co., 488 U.S. 469, 520 (1989) (SCALIA, J., concurring in judgment). Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution’s focus upon the individual, see Amdt. 14, 1 (“[N]or shall any State . . . deny to any person” the equal protection of the laws) (emphasis added), and its rejection of dispositions based on race, see Amdt. 15, 1 (prohibiting abridgment of the right to vote “on account of race”) or based on blood, see Art. III, 3 (“[N]o Attainder of Treason shall work Corruption of Blood”); Art. I, 9 (“No Title of Nobility shall be granted by the United States”). To pursue the concept of racial entitlement – even for the most admirable and benign of purposes – is to reinforce and preserve for future [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) , 2] mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.
It is unlikely, if not impossible, that the challenged program would survive under this understanding of strict scrutiny, but I am content to leave that to be decided on remand. [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) , 1]
JUSTICE THOMAS, concurring in part and concurring in the judgment.
I agree with the majority’s conclusion that strict scrutiny applies to all government classifications based on race. I write separately, however, to express my disagreement with the premise underlying JUSTICE STEVENS’ and JUSTICE GINSBURG’S dissents: that there is a racial paternalism exception to the principle of equal protection. I believe that there is a “moral [and] constitutional equivalence,” post, at 3, (STEVENS, J., dissenting), between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality. Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law.
That these programs may have been motivated, in part, by good intentions cannot provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race. As far as the Constitution is concerned, it is irrelevant whether a government’s racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged. There can be no doubt that the paternalism that [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) , 2] appears to lie at the heart of this program is at war with the principle of inherent equality that underlies and infuses our Constitution. See Declaration of Independence (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness”).
These programs not only raise grave constitutional questions, they also undermine the moral basis of the equal protection principle. Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation’s understanding that such classifications ultimately have a destructive impact on the individual and our society. Unquestionably, “[i]nvidious [racial] discrimination is an engine of oppression,” post, at 3. It is also true that “[r]emedial” racial preferences may reflect “a desire to foster equality in society,” ibid. But there can be no doubt that racial paternalism and its unintended consequences can be as poisonous and pernicious as any other form of discrimination. So-called “benign” discrimination teaches many that because of chronic and apparently immutable handicaps, minorities cannot compete with them without their patronizing indulgence. Inevitably, such programs engender attitudes of superiority or, alternatively, provoke resentment among those who believe that they have been wronged by the government’s use of race. These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are “entitled” to preferences. Indeed, JUSTICE STEVENS once recognized the real harms stemming from seemingly “benign” discrimination. See Fullilove v. Klutznick, 448 U.S. 448, 545 (1980) (STEVENS, J., dissenting) (noting that “remedial” race legislation “is perceived by many as resting on an assumption that those who are granted this special [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) , 3] preference are less qualified in some respect that is identified purely by their race”).
In my mind, government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice. * In each instance, it is racial discrimination, plain and simple.
Did not make it through the entire wall of text, but Paul R. Jones, let’s take a look at one of your own statements:
‘in short, you cannot provide any Statute at Large whereby Congress has Constitutional authority to this pass common law: Title 25-INDIANS as there are no more “Indians” within the original meaning of the Constitution post The Indian Citizenship Act of 1924.”
Is not your entire premise though one of that which you are saying cannot be done? Can a mere Act of Congress change the Constitution? You want to rely (and heavily so) on such a thing. Congress – alone – and by passage of a mere Act does not do so, now does it?
Anon: Yes. The passage of the Indian Citizenship Act of 1924 made them citizens…plain and simple. The Constitution then is controlling of one’s citizenship. Period.
You need to read the whole text…the SCOTUS decisions-in particular Osborn-clearly state that once U.S./State citizenship is achieved, the whole mantle of United States Constitutional protections apply. As of the Indian Citizenship Act of 1924, they became U.S./State citizens with “Indian ancestry/race” entitled to no more and no less than every other non-Indian U.S./State citizen. The 1924 Act made null all Constitutional references to “Indians” in the Commerce and Treaty Clause.
Pretty funny, PRJ, since from what I found poking a little bit, there have been quite a few SCOTUS cases since 1924 – including one as recently as 2014 – in which SCOTUS says Indian tribes have sovereign immunity. Which says to me your take on this situation is w-r-o-n-g.
Are you ranting because you THINK that the case law *should* be different than it IS?
To draw an analogy that’s appropriate for this blog (a patent blog, in case you didn’t notice), SCOTUS completely and totally got it wrong with patent eligibility under 35 USC 101 in its Myriad/Mayo/Alice line of cases. But none of us who read this blog and advise clients about patent matters would tell them to *ignore* those SCOTUS decisions, even though those decisions are wrong. We understand that, unfortunately, those decisions are the legal reality under which we labor. And until either SCOTUS chooses to revisit the issue and changes its mind, or Congress changes the statute, it will continue to be the legal reality.
Keep it up, Don Quixote.
Atari Man: You didn’t cite any SCOTUS decisions RE. Title 25-INDIANS, to support your post.
Paul R. Jones,
You have not addressed the point put to you: you are trying to claim that a mere act of Congress changed the Constitution.
You should know (since you quote such as part of your own arguments) that such is improper and without any actual force of law.
Thus, your own argument proves too much and shows that your own premise is without force of law.
By the way, I clearly have been following your posts. Just because I am pointing out (with precision) a fundamental flaw in your attempted logic – and that you may not like where this leads, does NOT mean that I have not been following what you have been saying.
It just means that I have identified a flaw in your foundation.
By the way – your argument seems to want to morph (below) to now indicate that it was the 14th Amendment that drives the change, as opposed to a mere Act of Congress. Can you clarify which is actually your position?
Your answer at 5.3.3.1.1.1 is only good as far as you yourself follow it. The Act of Congress that was your original thrust DID NOT have the necessary force to be a Constitutional Amendment. You keep on wanting to bootstrap court cases that DO NOT HOLD what you want them to hold because your foundation remains a mere act of Congress, that according to your own statements CANNOT change the Constitution.
If indeed you are switching now to say the 14th Amendment is the drive, then you need to reformulate your arguments and use that (instead of the mere act of Congress).
(lastly, I do hope that you realize that my “arguments” with you have NOT been to disagree with your OVERALL position, but rather, they have been with HOW you have crafted your (initial) arguments to reach that overall position)
Anon: Clearly, you have yet to graps the significance of being a U.S./State citizen under the full protection of the United States Constitution…the SCOTUS decisions make the protection of one’s U.S./State citizenship explicit! Your post does not disprove any of my Constitution-based truths…you merely say they don’t apply. Prove they don’t apply by citing the United States Constitution that overcomes all of the posted SCOTUS decisions I have made plus the 14th Amendment that make a select group of U.S./State citizens with “Indian ancestry/race” since 1924 ‘distinguishable’ from all non-Indian U.S./State citizens. If you cannot, your post is merely your opoinion you cannot supprt citing the Constitution.
Anon: Once again, Citizenship is controlled by the Constitution itself. Once citizenship is achieved by The Indian Citizenship Act of 1924, the Constitution is now the controlling authority. Simple enough. You have provided to no Amendments to change the Constitution’s protection.
You need to re-read the SCOTUS decisions more carefully as they are explicit on what happens once U.S./State citizenship is achieved.
Anon: You have yet to provide any Constitutional source of authority to support any of your posts including this last one.
Paul R Jones – I am not the one that needs a Constitutional cite.
On the other hand, as I have explained, you do because it appears that you are using a mere Congressional law that on its face indicates that prior levels are not to be reduced with that very thing of abrogating a portion of the Constitution.
That protection you reference is not a one-size fits all because it did not CHANGE the other portion of the Constitution (it did not repeal the affect of dealing with Indian nations). You seem to want to assert a secondary act of Congress with that Constitutional change, and that just does not fly.
AM, I think PRGs argument is that these are decisions on Tribal immunity from State action and State legislation, not immunity from Federal Court jurisdiction based on Federal legislation based on Federal Constitutional legislative powers [like the AIA patent legislation]? Did you see any immunity decisions on the latter?
Is it merely “state action,” or is it that no other party can bring an action in the Federal forum (immunity from just whom may be bringing a challenge in that Federal forum)…?
Paul F. Morgan:
No one following and or posting to this thread has provided any Constitutional source of authority for politicians-state or federal-to pass common law that regulates from womb to tomb a select group of U.S./State citizens with “Indian ancestry/race” since 1924 to make the capacities, metes and boundaries of these citizens distinguishable from all other non-Indian U.S./State citizens because of their “Indian ancestry/race!”
No one following this thread has answered this Constitution-based question…a question so simple, it is hard:
“Where is the proclamation ratified by the voters of the United States that amends the Constitution to make the health, welfare, safety and benefits of a select group of U.S./State citizens distinguishable because of their “Indian ancestry/race?”
“since 1924”
You appear to still depend on an Act of Congress to have Constitution-changing abilities….
PRJ – like it or not, the SCOTUS has already said that the Citizenship Act of 1924 gave Natives access to federal court but it did not abrogate Tribal Court jurisdiction. Part of their reasoning was, sadly, that the grant of citizenship was not a full grant of citizenship.
Your idea that tribal courts have no jurisdiction over United States citizens absent a treaty is, to my way of thinking, correct. However, the SCOTUS blew that up years ago when they said that the grant of citizenship was not a “full” grant of citizenship because it did not specifically abrogate tribal court jurisdiction. I suspect those cases could be limited to their facts if the situation was one of criminal law and a right to jury trial.
Stop bursting PRJ’s bubble.
Don’t flatter yourself. No one following this thread has over-come my Constitution-based truths. Hokie2Hoya has yet to provide any SCOTUS decisions to support his post.
Hodie2Hoya: You did not provide any SCOTUS decisions to support your post. Nor did you provide any Constitutional Amendments to may your post true. Or, is your post merely your opinion?
“because it did not specifically abrogate tribal court jurisdiction.”
I think that point needs to be emphasized (especially in conjunction with Paul R Jones’ own point that the mere act of Congress (which cannot serve as a Constitutional amendment) was stated as NEITHER expanding or abridging any pre-Act items.
Paul R Jones’ argument then must come down to whether or not the 14th Amendment – in and of itself – changed the Constitutional language setting those same tribal court jurisdictions into the void.
It’s pretty clear (to most people) that such a position has not been staked out previously.
anon: This post “I think that point needs to be emphasized (especially in conjunction with Paul R Jones’ own point that the mere act of Congress (which cannot serve as a Constitutional amendment) was stated as NEITHER expanding or abridging any pre-Act items.” is your opinion and pure conjecture and not in anyway in concert with my Constitution-based truths.
Osborn succinctly states that once U.S./Citizenship is achieved, this happens:
““A naturalized citizen is indeed made a citizen under an act of Congress, but the act does not proceed to give, to regulate, or to prescribe his capacities. He becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature, is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual. The constitution then takes him up, and, among other rights, extends to him the capacity of suing in the Courts of the United States, precisely under the same circumstances under which a native might sue. He is [22 U.S. 738, 828] distinguishable in nothing from a native citizen, except so far as the constitution makes the distinction. The law makes none.”
“to enlarge or abridge”
You keep on skipping over that “abridge” part….
anon: It is simple…politicians cannot ‘enlarge or abridge (deminish)’ one’s U.S./State citizenship absent an Amendment to do so.
Anon: Considering you are unable to read and comprehend a SCOTUS decision in Osborn (which makes the other cited SCOTUS decisions beyond your understanding as well) regarding Congress and one’s Constitutional U.S./State citizenship protections when placed under your nose, the balance of your posts are merely bluster and sophistries amounting to nothing.
Sir Winston Churchill has the perfect reply to your posts:
“The truth is incontrovertible. … Malice may attack it, ignorance may deride it, but in the end, there it is.” – Winston Churchill
I have pointed out an error in your view and you have done nothing to address the error, instead all that you have done is try to attack me.
Address the point presented to you.
You have presented no “Point” to address. You have yet to provide any Constitutional Amendment to make any of your points valid. Nothing you have provided overcomes the simple Constitutional fact that as of The Indian Citizenship Act of 1924, they are U.S./State citizens. You have provided nothingto change that and neither does you asserted ‘point’ where you cannot or will not read exactly what SCOTUS says.
Paul,
I am not the one that needs to provide anything of the nature of a”Constitutional Amendment.”
The point that I have presented – the point that you refuse to address – is that your own arguments work against you.
It is you that is acting as if a mere act of Congress has enough power to change the Constitutional delegation of treatment of American Indians.
I have asked you to clarify whether or not your position is driven by a Constitutional amendment or by the LATER act of Congress, and you have refused to make that clarification. All that you have done is post in a manner that indicates that the later act is in fact your driver.
ALL of your points then – your long block texts of Supreme Court views – does not change the fact that your position collides with itself and cannot stand.
Instead of trying to shoot the messenger, you should pay closer attention to the message.
Anon: Paul,
“I am not the one that needs to provide anything of the nature of a”Constitutional Amendment.”
The point that I have presented – the point that you refuse to address – is that your own arguments work against you.
It is you that is acting as if a mere act of Congress has enough power to change the Constitutional delegation of treatment of American Indians.
I have asked you to clarify whether or not your position is driven by a Constitutional amendment or by the LATER act of Congress, and you have refused to make that clarification. All that you have done is post in a manner that indicates that the later act is in fact your driver.
ALL of your points then – your long block texts of Supreme Court views – does not change the fact that your position collides with itself and cannot stand.
Instead of trying to shoot the messenger, you should pay closer attention to the message.”
Yes. You are in need of reading the United States
Constitution and SCOTUS decisions on U.S./State citizenship achieved in the Indian Citizenship Act of 1924…a concept you cleary do not understand…your question has been answered repeadedly…they are U.S. /State citizens with “Indian ancestry/race” and that citizenship brings all of them under the protective mantle of the Constitution. The fact you don’t understand that requires you to either withdraw from the discussion or read the Constitution’s protection of one’s U.S./State citizenship.
“Yes. You are in need of reading the United States
Constitution and SCOTUS decisions on U.S./State citizenship achieved in the Indian Citizenship Act of 1924…a concept you cleary do not understand…your question has been answered repeadedly…they are U.S. /State citizens with “Indian ancestry/race” and that citizenship brings all of them under the protective mantle of the Constitution. The fact you don’t understand that requires you to either withdraw from the discussion or read the Constitution’s protection of one’s U.S./State citizenship.”
You have already said that and I have already pointed out that your saying it does not make it so.
FURTHER, this has nothing to do with the error in your position that I have pointed out.
I need to read NOTHING, as my pointing out of YOUR error is not dependent on my reading of the SCOTUS decisions.
YOUR reading makes a mere act of Congress have Constitutional changing powers, and YOU still have not paid attention to the critical word of “abridge” and what that word means.
YOU need to look at your own position and STOP expecting anyone else to come up with anything else new.
I suspect this gambit will meet the same fate as a previous attempt to manufacture a TXED venue claim by assigning the patents-in-suit to a local nonprofit. link to cafc.uscourts.gov
“The district court granted the
Appellees’ motion to dismiss Tri-County for lack of standing,
finding that Tri-County had effectively assigned
Azure the ’129 patent. Because we agree that the agreement
between Tri-County and Azure constituted an
effective assignment for purposes of standing, we affirm
the dismissal of Tri-County. ”
Not sure of your point, Josh – the “attempt to manufacture venue” comment does not seem to apply – there was no issue there; and the fact pattern of multiple switched ownership does not seem to reflect THIS case.
But thanks for the link – that was an interesting read.
The fact that the issue was not before the Federal Circuit doesn’t mean that it didn’t exist, nor that it did not drive the decisions behind creation of TCEF.
Josh,
Not sure exactly what your reply means. I was pointing out your post here does not carry what you seem to say that it carries.
If you wanted at first blush to say something else (and/or give some other case that backs up your point), then we could have a conversation on that. As it is, your post at 9.1.1 says nothing about your original post, nor my comment to that post.
Paul Jones seems to be really, really worked up about this. Paul, did Allergan kill someone in your family? Personally I think this is a really creative gambit. It can’t do Allergan any harm, the worst that can happen for Allergan is the patents at issue will still be subject to PTAB jurisdiction. And if it works, PTAB is out of the picture. Also, with an Indian Tribe as the owner of the patents, does this lessen the likelihood of a finding of antitrust violations should Allergan do a reverse payments deal with a generic drug manufacturer? That would be a not-insignificant added plus.
And I’m with IWT at 6.0: someone is gonna challenge the US patent system at the WTO (my bet is France rather than China), and the USTR should stop pointing the finger at everyone else for providing allegedly deficient IP protection while the US won’t protect diagnostics (among other failures).
Also, with an Indian Tribe as the owner of the patents, does this lessen the likelihood of a finding of antitrust violations should Allergan do a reverse payments deal with a generic drug manufacturer?
Seriously? It seems to me that the opposite is more likely .
Personally I think this is a really creative gambit.
Personally I think this is why nobody takes the patent maximalists seriously when they whine and cry about “the rule of law” and “big corps is stealing my idea”. What a pack of incredible hypocrites (but we knew that already).
the US won’t protect diagnostics (among other failures).
LOL — what did you have in mind? I’m a biotech patent attorney and most of the “diagnostics” “tech” out there is absolute cr @p that doesn’t belong anywhere near the patent system.
Your post “Paul, did Allergan kill someone in your family?” is is poor taste.
Please copy and paste your comment again. I think people may have skipped over the other 10 instances of it, in an astonishing failure of curiosity and intellectual integrity. No one must be permitted to discuss any other facet of this issue without being told that they’re missing the point by failing to refute your constitutional argument.
Also, you’re not answering the question.
My original post stands. If you don’t like it, prove my Constitution-based truths wrong. If not, then retire from the discussion as having nothing to contribute.
“prove my Constitution-based truths wrong”
See above about you wanting to make a mere Act of Congress alone enough to change the Constitution…
Anon: Clearly, you have not been following my posts. Once again:
These SCOTUS decisions affirm that once U.S./State citizenship is achieved, politicians-state and federal-have no authority to ‘enlarge or abridge’ one’s citizenship:
1. United States Supreme Court AFROYIM v. RUSK, (1967) No. 456 Argued: February 20, 1967 Decided: May 29, 1967
“(a) Congress has no express power under the Constitution to strip a person of citizenship, and no such power can be sustained as an implied attribute of sovereignty, as was recognized by Congress before the passage of the Fourteenth Amendment; and a mature and well-considered dictum in Osborn v. Bank of the United States, 9 Wheat. 738, 827, is to the same effect. Pp. 257-261.
(b) The Fourteenth Amendment’s provision that “All persons born or naturalized in the United States . . . are citizens of the United States . . .” completely controls the status of citizenship and prevents the cancellation of petitioner’s citizenship. Pp. 262-268”
2. United States Supreme Court OSBORN v. BANK OF U.S., (1824) No. 80
Argued: Decided: March 19, 1824
“A naturalized citizen is indeed made a citizen under an act of Congress, but the act does not proceed to give, to regulate, or to prescribe his capacities. He becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature, is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual. The constitution then takes him up, and, among other rights, extends to him the capacity of suing in the Courts of the United States, precisely under the same circumstances under which a native might sue. He is [22 U.S. 738, 828] distinguishable in nothing from a native citizen, except so far as the constitution makes the distinction. The law makes none.”
3. “An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.” [Norton v. Shelby County, 118 US 425 (1885)]
4. United States Supreme Court
ADARAND CONSTRUCTORS, INC. v. PENA, (1995) No. 93-1841 Argued: January 17, 1995 Decided: June 12, 1995:
JUSTICE SCALIA, concurring in part and concurring in the judgment.
I join the opinion of the Court, except Part III-C, and except insofar as it may be inconsistent with the following: In my view, government can never have a “compelling interest” in discriminating on the basis of race in order to “make up” for past racial discrimination in the opposite direction. See Richmond v. J. A. Croson Co., 488 U.S. 469, 520 (1989) (SCALIA, J., concurring in judgment). Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution’s focus upon the individual, see Amdt. 14, 1 (“[N]or shall any State . . . deny to any person” the equal protection of the laws) (emphasis added), and its rejection of dispositions based on race, see Amdt. 15, 1 (prohibiting abridgment of the right to vote “on account of race”) or based on blood, see Art. III, 3 (“[N]o Attainder of Treason shall work Corruption of Blood”); Art. I, 9 (“No Title of Nobility shall be granted by the United States”). To pursue the concept of racial entitlement – even for the most admirable and benign of purposes – is to reinforce and preserve for future [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) , 2] mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.
It is unlikely, if not impossible, that the challenged program would survive under this understanding of strict scrutiny, but I am content to leave that to be decided on remand. [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) , 1]
JUSTICE THOMAS, concurring in part and concurring in the judgment.
I agree with the majority’s conclusion that strict scrutiny applies to all government classifications based on race. I write separately, however, to express my disagreement with the premise underlying JUSTICE STEVENS’ and JUSTICE GINSBURG’S dissents: that there is a racial paternalism exception to the principle of equal protection. I believe that there is a “moral [and] constitutional equivalence,” post, at 3, (STEVENS, J., dissenting), between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality. Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law.
That these programs may have been motivated, in part, by good intentions cannot provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race. As far as the Constitution is concerned, it is irrelevant whether a government’s racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged. There can be no doubt that the paternalism that [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) , 2] appears to lie at the heart of this program is at war with the principle of inherent equality that underlies and infuses our Constitution. See Declaration of Independence (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness”).
These programs not only raise grave constitutional questions, they also undermine the moral basis of the equal protection principle. Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation’s understanding that such classifications ultimately have a destructive impact on the individual and our society. Unquestionably, “[i]nvidious [racial] discrimination is an engine of oppression,” post, at 3. It is also true that “[r]emedial” racial preferences may reflect “a desire to foster equality in society,” ibid. But there can be no doubt that racial paternalism and its unintended consequences can be as poisonous and pernicious as any other form of discrimination. So-called “benign” discrimination teaches many that because of chronic and apparently immutable handicaps, minorities cannot compete with them without their patronizing indulgence. Inevitably, such programs engender attitudes of superiority or, alternatively, provoke resentment among those who believe that they have been wronged by the government’s use of race. These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are “entitled” to preferences. Indeed, JUSTICE STEVENS once recognized the real harms stemming from seemingly “benign” discrimination. See Fullilove v. Klutznick, 448 U.S. 448, 545 (1980) (STEVENS, J., dissenting) (noting that “remedial” race legislation “is perceived by many as resting on an assumption that those who are granted this special [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) , 3] preference are less qualified in some respect that is identified purely by their race”).
In my mind, government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice. * In each instance, it is racial discrimination, plain and simple.
I don’t get it. Allergen still must defend patent validity to enforce the patent in district court. Pharma competitors are not going to roll over just because the faster cheaper PTAB is not available.
Consider it insurance against the PTAB (and the combo of BRI, NO clear and convincing standard, and a typially antagonistic “judiciary”).
Patent lawyers + Constitutional law -> Hilarity. I guess we should add the treaty clause now too. And maybe an understanding of Sovereign power. Mark my words, the USA is going to get a WTO complaint that we don’t provide a ‘rule of law’ patent system because of the PTAB. And in the irony of ironies – probably from China. Wilber Ross and the USTR, need to get a grasp of our current PTAB system, before they go casting stones against others for IP ‘theft’ of US commercial I – property.
This Allergan ploy with a faux “Indian tribe” is easily debunked by Allergan’s opponents who present my question in court. And as for ‘treaties,’ the Constitution makes for no provisions for treaties with constituency.
In Article I, the United States Constitution accomplishes the goal of excluding states and individuals from Indian affairs by stating that only Congress has the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes . . . .”
Paul F. Morgan: The Indian Citizenship Act of 1924 made null the Constitution’s text RE. The Commerce Clause…they are U.S./State citizens under the full mantle of the U.S. Constitution’s protection of one’s citizenship. You have provided no Amendments to the Constitution to change their U.S./State citizenship status to be distinguishable because of their Indian ancestry/race from all other non-Indian U.S./State citizens.
The Indian Citizenship Act of 1924 made null the Constitution’s text RE
Fascinating.
The Constitution protects your U.S./State citizenship from political abuse as noted in these SCOTUS decisions:
1. United States Supreme Court AFROYIM v. RUSK, (1967) No. 456 Argued: February 20, 1967 Decided: May 29, 1967
“(a) Congress has no express power under the Constitution to strip a person of citizenship, and no such power can be sustained as an implied attribute of sovereignty, as was recognized by Congress before the passage of the Fourteenth Amendment; and a mature and well-considered dictum in Osborn v. Bank of the United States, 9 Wheat. 738, 827, is to the same effect. Pp. 257-261.
(b) The Fourteenth Amendment’s provision that “All persons born or naturalized in the United States . . . are citizens of the United States . . .” completely controls the status of citizenship and prevents the cancellation of petitioner’s citizenship. Pp. 262-268”
2. United States Supreme Court OSBORN v. BANK OF U.S., (1824) No. 80
Argued: Decided: March 19, 1824
“A naturalized citizen is indeed made a citizen under an act of Congress, but the act does not proceed to give, to regulate, or to prescribe his capacities. He becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature, is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual. The constitution then takes him up, and, among other rights, extends to him the capacity of suing in the Courts of the United States, precisely under the same circumstances under which a native might sue. He is [22 U.S. 738, 828] distinguishable in nothing from a native citizen, except so far as the constitution makes the distinction. The law makes none.”
3. United States Supreme Court
ADARAND CONSTRUCTORS, INC. v. PENA, (1995) No. 93-1841 Argued: January 17, 1995 Decided: June 12, 1995:
JUSTICE SCALIA, concurring in part and concurring in the judgment.
I join the opinion of the Court, except Part III-C, and except insofar as it may be inconsistent with the following: In my view, government can never have a “compelling interest” in discriminating on the basis of race in order to “make up” for past racial discrimination in the opposite direction. See Richmond v. J. A. Croson Co., 488 U.S. 469, 520 (1989) (SCALIA, J., concurring in judgment). Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution’s focus upon the individual, see Amdt. 14, 1 (“[N]or shall any State . . . deny to any person” the equal protection of the laws) (emphasis added), and its rejection of dispositions based on race, see Amdt. 15, 1 (prohibiting abridgment of the right to vote “on account of race”) or based on blood, see Art. III, 3 (“[N]o Attainder of Treason shall work Corruption of Blood”); Art. I, 9 (“No Title of Nobility shall be granted by the United States”). To pursue the concept of racial entitlement – even for the most admirable and benign of purposes – is to reinforce and preserve for future [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) , 2] mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.
It is unlikely, if not impossible, that the challenged program would survive under this understanding of strict scrutiny, but I am content to leave that to be decided on remand. [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) , 1]
JUSTICE THOMAS, concurring in part and concurring in the judgment.
I agree with the majority’s conclusion that strict scrutiny applies to all government classifications based on race. I write separately, however, to express my disagreement with the premise underlying JUSTICE STEVENS’ and JUSTICE GINSBURG’S dissents: that there is a racial paternalism exception to the principle of equal protection. I believe that there is a “moral [and] constitutional equivalence,” post, at 3, (STEVENS, J., dissenting), between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality. Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law.
That these programs may have been motivated, in part, by good intentions cannot provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race. As far as the Constitution is concerned, it is irrelevant whether a government’s racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged. There can be no doubt that the paternalism that [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) , 2] appears to lie at the heart of this program is at war with the principle of inherent equality that underlies and infuses our Constitution. See Declaration of Independence (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness”).
These programs not only raise grave constitutional questions, they also undermine the moral basis of the equal protection principle. Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation’s understanding that such classifications ultimately have a destructive impact on the individual and our society. Unquestionably, “[i]nvidious [racial] discrimination is an engine of oppression,” post, at 3. It is also true that “[r]emedial” racial preferences may reflect “a desire to foster equality in society,” ibid. But there can be no doubt that racial paternalism and its unintended consequences can be as poisonous and pernicious as any other form of discrimination. So-called “benign” discrimination teaches many that because of chronic and apparently immutable handicaps, minorities cannot compete with them without their patronizing indulgence. Inevitably, such programs engender attitudes of superiority or, alternatively, provoke resentment among those who believe that they have been wronged by the government’s use of race. These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are “entitled” to preferences. Indeed, JUSTICE STEVENS once recognized the real harms stemming from seemingly “benign” discrimination. See Fullilove v. Klutznick, 448 U.S. 448, 545 (1980) (STEVENS, J., dissenting) (noting that “remedial” race legislation “is perceived by many as resting on an assumption that those who are granted this special [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) , 3] preference are less qualified in some respect that is identified purely by their race”).
In my mind, government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice. * In each instance, it is racial discrimination, plain and simple.
4. . “An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.” [Norton v. Shelby County, 118 US 425 (1885)]
Paul – apply your own quote at 4 to your own attempt to read into a mere Act of Congress (without more) as attempting to rewrite (or amend) the Constitution.
Are you arguing against yourself?
anon: No. I am not arguing against myself. My Constitutional-based truths flow directly from the Constitution itself beginning with the 14th
Amendment’s ‘equal protection’ and these protections of one’s citizenship are greatly amplified in Adarand noted above. You failed to understand the SCOTUS decisions regarding the Constitution’s protection of one’s U.S./State citizenship once achieved much less the Constitution’s 14th Amendment’s ‘equal protection.” U.S./State citizenship makes Title 25-INDIANS null. Period. You have provided no Amendments whereby a select group of U.S./State citizens post the Indian Citizenship Act can have their citizenship ‘enlarged or abridge’ by common law!
“the Constitution’s 14th Amendment’s ‘equal protection.” U.S./State citizenship makes Title 25-INDIANS null. Period.”
Not so.
Clearly.
“You have provided no Amendments whereby a select group of U.S./State citizens post the Indian Citizenship Act can have their citizenship ‘enlarged or abridge’ by common law!”
And neither have you. You yet continue to abridge something in the Constitution with your reliance on an act of Congress that came long after the 14th Amendment.
If – as I suspect that you might want to – you are attempting to switch the driver of your argument from the act of Congress (which cannot have the force of a Constitutional amendment) to the 14th Amendment, you run into the problem that THAT same act of Congress presents: your (unstated, but potential) view of a new driver would make the act of Congress superfluous.
Either way, your view – without more – is simply flawed and does not stand scrutiny. There is NO NEED for anyone to provide anything, given that what you have provided is not sound.
There may be reasons why this gambit of Allergen does not work, but your reasoning is not that.
Anon: Provide the Constitution’s source to support this post. Absent your citation from the Constitution to disprove my SCOTUS and 14th Amendments to support my post, you are merely expressing your opinion…an opinion you have yet to support citing the Constitution.
“the Constitution’s 14th Amendment’s ‘equal protection.” U.S./State citizenship makes Title 25-INDIANS null. Period.”
Not so.
Clearly.
Paul R Jones,
You are simply not addressing the flaw that I have pointed out.
Asking me for a cite does not address YOUR flaw.
Saying that my pointing out your flaw is “merely my opinion” does NOT address your flaw.
I have asked you point blank if your argument driver is the 14th Amendment or the 1924 Act.
You seem unable (or unwilling) to answer that question.
Do you even understand why that question is being asked? You indicated a correct answer as to what it takes to amend the Constitution, and yet you seem intent on placing a mere Act of Congress as having THAT power.
This statement needs no citation. What it needs is for YOU to address the identified flaw in your position.
“Patent lawyers + Constitutional law -> Hilarity. I guess we should add the treaty clause now too”
You forgot two:
admin law
property law
😉
Anon: The core issue at hand is Allergan’s legal strategy to use an alledged “sovereign Indian tribes” to shield court suits on Allergan’s patents. Allergan is resting their strategy on a myth this single question will debunk:
A simple question to answer…a question so simple, it is hard:
“Where is the proclamation ratified by the voters of the United States that amends the Constitution to make the health, welfare, safety and benefits of a select group of U.S./State citizens distinguishable because of their “Indian ancestry/race?”
That is nowhere near being the question to ask.
Anon: Yes. It is. The question debunks any notion that Allergan’s strategy of hiding patent challenges behind the veil of ‘Indian tribal nation sovereignty” is Constitutional…there is no such thing under the Constitution as a ‘sovereign Indian nation!”
And you are nowhere near funny answering yourself all the time
Then prove my Constitution-based truths wrong if you believe my posts are funny!
Allergan’s lawyers need a refresher course on the United States Constitution regarding ones’ U.S./State citizenship not to mention the 14th Amendment’s ‘equal protection’ provisions.
My question posed at the end of this text debunks Allergan’s ploy to avoid patent infringement suits by supposedly hiding behind a faux “Indian tribe’s asserted sovereign Indian nation” …a ploy that would survive the question.
This article is an astonishing piece of a deplorable lack of journalist curiosity regarding U.S./State citizens with “Indian ancestry/race” since The Indian Citizenship Act of 1924! That single Indian Citizenship Act of 1924, made null all previous common law-state and federal-including Presidential Executive Orders, Commerce Clause and Treaty Clause alleged Indian Treaties (if any U.S. Senate confirmed Indian treaties actually existed pre-1924 Citizenship) regarding U.S./State citizens with “Indian ancestry/race” so often touted by politicians and Indian advocates as being legitimate law.
And yet, politicians and MSM continue to perpetuate willful blindness to the Constitutional absurdity that Congress, Presidents/Governors, Initiatives and Referendums can make distinguishable the capacities, metes and boundaries of a select group of U.S./State citizens with “Indian ancestry/race” post citizenship.
The United States Constitution makes for no provisions for:
1. Indian sovereign nations. None of the asserted tribes possess any of the attributes of being a ‘sovereign nation:’ a. No U.S. Constitution recognition b. No international recognition c. No fixed borders d. No military e. No currency f. No postal system g. No passports h. et al
2. Treaties with its own constituency
3. Indian reservations whereby a select group of U.S./State citizens with “Indian ancestry/race” reside exclusively and to the exclusion of all others, on land-with rare exception-that is owned by the People of the United States according to federal documents readily available on-line that notes rights of renters as ‘occupancy and use’ by these distinguished U.S./State citizens with “Indian ancestry/race” only with the land owned by the People of the United States.
4. Recognition of ‘Indian citizenship’ asserted by various tribes. There is no international/U.S. Constitution recognition of “Indian citizenship” as there is no ‘nation-state’ from which citizenship is derived.
A simple question for politicians and MSM to answer…a question so simple, it is hard:
“Where is the proclamation ratified by the voters of the United States that amends the Constitution to make the health, welfare, safety and benefits of a select group of U.S./State citizens distinguishable because of their “Indian ancestry/race?”
Rest assured Paul, Allergan knows exactly what they are doing here. They are very smart actors.