Allergan: Creating Sovereign Immunity with Tribal Pass-Through

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.

Image result for Restasis

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.

137 thoughts on “Allergan: Creating Sovereign Immunity with Tribal Pass-Through

  1. 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.

  2. 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

  3. “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?

  4. Their business strategy, which makes you laugh till you cry, obviates the need for their product.

      1. 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.”

  5. 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?

    1. 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.

      1. 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?

        1. 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.

          1. 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.

            1. Atari Man: You didn’t cite any SCOTUS decisions RE. Title 25-INDIANS, to support your post.

              1. 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)

                1. 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.

                2. 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.

                3. Anon: You have yet to provide any Constitutional source of authority to support any of your posts including this last one.

                4. 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.

            2. 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?

              1. 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)…?

                1. 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?”

      2. 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.

          1. 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.

        1. 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?

        2. 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.

          1. 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.”

            1. to enlarge or abridge

              You keep on skipping over that “abridge” part….

              1. anon: It is simple…politicians cannot ‘enlarge or abridge (deminish)’ one’s U.S./State citizenship absent an Amendment to do so.

              2. 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

                1. 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.

              3. 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.

                1. 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.

              4. 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.

                1. 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.

  6. 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

    1. “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.

      1. 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.

        1. 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.

  7. 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).

    1. 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.

    2. Your post “Paul, did Allergan kill someone in your family?” is is poor taste.

      1. 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.

        1. 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.

          1. prove my Constitution-based truths wrong

            See above about you wanting to make a mere Act of Congress alone enough to change the Constitution…

            1. 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.

  8. 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.

    1. Consider it insurance against the PTAB (and the combo of BRI, NO clear and convincing standard, and a typially antagonistic “judiciary”).

  9. 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.

    1. 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.

      1. 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 . . . .”

        1. 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.

          1. The Indian Citizenship Act of 1924 made null the Constitution’s text RE

            Fascinating.

            1. 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)]

              1. 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?

                1. 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!

                2. 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.

                3. 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.

                4. 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.

    2. Patent lawyers + Constitutional law -> Hilarity. I guess we should add the treaty clause now too

      You forgot two:
      admin law
      property law

      😉

      1. 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?”

        1. That is nowhere near being the question to ask.

          1. 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!”

            1. Then prove my Constitution-based truths wrong if you believe my posts are funny!

  10. 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?”

    1. Rest assured Paul, Allergan knows exactly what they are doing here. They are very smart actors.

      1. Iwasthere: Proof of just how smart Allergan attorneys are will be when the other side asks in court the question I presented above.

        1. I do wonder if this IPR avoidance bit might be just a clever cover story for a new twist on the many successful corporate tax dodges outsmarting the IRS by shifting patent and trademark ownerships around between countries with effectively uncontested alleged valuations?

      2. Yes, the pharmaceutical industry has many good and highly paid attorneys, and those here are indisputably very creative.
        But I wonder any of them are among the attorneys who creatively advised their pharmaceutical industry clients that “pay to delay” – patent dispute settlement agreements with incentives to delay lower cost equivalent generic drugs market entry – was not an antitrust problem? [Some even after the FTC promptly publicly declared it a top target.]

        1. Paul F. Morgan. Allergan’s legal strategy to hide their patents from challenge in court by transfer to a faux “Indian tribe” exposes Allergan to a fraud upon the Constitution via the “Indian tribe” in court.

    2. They aren’t trying to avoid patent infringement suits, they’re trying to avoid being robbed of their IP by the PTAB death panels. As for the sovereignty of the Indian nations, the PTO has already dismissed several IPR petitions on the basis of sovereign rights for state schools. If the Indian Tribe “ploy” won’t work, support your local state college.

      1. Patent Investor: You are comparing an apple to an orange with state schools and faux “sovereign nation Indian tribes.”
        State schools have Constitutional validity as they are an arm of the State itself. The notion that federally recognized Indian tribes possess ‘sovereign nation’ status does not exist under the United States Constitution post The Indian Citizenship Act of 1924. Title 25-INDIANS is a political fraud upon the Constitution…no one has provided any Constitutional source of authority for Title 25-INDIANS to exist post The Indian Citizenship Act of 1924. Allergan’s ploy is resting on a myth.

        1. Paul,

          Then why do you think a bunch of high priced, high powered lawyers would avoid the easy way out and walk into a trap as so “easily defined” by your question. I mean, if you could come up with it, don’t you think somebody at Allergan came up with it too????? Is it as simple as you strongly dislike Native Americans???

          1. Patent Investor: Constitutional stupidity foreclosures high powered lawyers from seeing the Constitutional absurdity of this thinking…it is called ‘wilful blindness.’ Fraud against the Constitution by faux Indian tribes is the problem.

    3. Paul, your comment is based on an inaccurate premise. Allergen isn’t trying to avoid patent infringement suits.

      They are, presumably, trying to avoid post-grant challenges of their own patents under the AIA, like IPR, PGR, CBM, etc. The vehicle for this is apparently (according to Dennis’s speculation), an assignment of those patents to Native American tribes to take advantage of their sovereign immunity. Allergen no doubt has a very broad exclusive grant-back license from the tribe, making Allergen the real owner in everything but formal title only, with formal title held by the tribe.

      But the ploy should not work for the reasons another commenter already mentioned. The sovereign immunity that Native American tribes enjoy is much more limited than the immunity that states (and state run institutions like universities) have under the Eleventh Amendment. The Eleventh Amendment protects states from suits under federal law, but tribal immunity is very different and far more limited. It protects tribes against the application of state law, but it does not protect them from federal law. The Supreme Court has explained that Congress has essentially “plenary” authority over the tribes, leaving the states with no authority beyond that which Congress expressly grants to the state by statute (which Congress has granted on a few occasions). Congress is therefore free to set aside or abrogate the tribes’ sovereign immunity through statute; it’s not a federal constitutional issue and has nothing to do with the states’ sovereign immunity under the 11th Amendment.

      Because the AIA is a federal statute, it’s not clear how tribal immunity would have any bearing here. The AIA does not exempt tribal-owned patents from its post-grant review provisions, and the argument for tribal immunity seems particularly weak considering that the alleged invention of the Allergen patents was no doubt developed entirely outside tribal areas.

      Allergen has made a pretty expensive bet here, based on a pretty shaky argument. They could no doubt argue that, to waive the tribal sovereign immunity with respect to tribal-owned patents, Congress needed to be explicit and call them out. But I suspect that argument would fail when, as here, the patented inventions were not invented within Native American tribes or by members of the tribe. In any event, the sovereign immunity of Native American tribes is so narrow and limited, and subject to the will of Congress, that I’d be surprised if this argument got any traction–particularly considering the gamesmanship that it represents.

      1. Lode Runner: My premise turns on the U.S. Constitutional fact there is no such thing as a ‘sovereign Indian tribe.’ That simple fact makes Allergan’s ploy null. Citing the Eleventh Amendment is irrelevant to the core issue as follows regarding faux “Indian tribes as sovereign nations” which are jumped over by MSM and non-Indian U.S./State citizens in looking at Allergan’s ploy:

        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?”

      2. Lode Runner: My original post stands. You have provided nothing to overcome my Constitution-based truths.

      3. Yes, an assignment “making Allergen the real owner in everything but formal title only, with formal title held by the tribe” seems highly likely, since otherwise, if the tribe retained any incidents of ownership, it could become a necessary joint party to D.C. suits on the patent.
        So, why would Allegen not remain a “real party in interest” or “a privy” in a pending IPR against its patents? What prevents new IPRs against even the “Tribe’s patents” if there is no sovereign immunity from Federal statutes since “standing” is not required for an IPR Petitioner unless the Petitioner needs to also appeal the IPR decision to the Fed. Cir.? What am I missing here? This deal is so weird it makes my head spin.

        1. There is no such thing under the United States Constitution as a ‘sovereign Indian tribe!’ This is a cleave hoax.

          1. How do Constitutional amendments work, Paul?

            Does your own basis survive your own arguments?

            1. Anon:
              Answer to question #1 ARTICLE V
              MODE OF AMENDMENT

              The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

              Answer to question #2: Yes. Once United States Citizenship is achieved, the United States Constitution mantle of protection is in control one’s U.S./State citizenship 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)]

            2. Anon:See here – again and again – you proclaim an Act of Congress to have Constitution changing power.

              You keep on skipping over the “no abridge” portion as you do that very thing: abrdge.

              When you understand the U.S. Constitutional significance of U.S./State citzenship of the Indian Citizenship Act of 1924, and what SCOTUS has said, then you will have answered your own question…until then, I have answered your question repeatedly. In short, you are Constitutionally naive.

              1. U.S. Constitutional significance of U.S./State citzenship of the Indian Citizenship Act of 1924,

                I understand full well that a mere act of Congress cannot have the “Constitutional significance that you BOTH seem to want AND that YOU have said cannot happen.

                This is why I am pointing out to you that it is YOUR OWN words that defeat your attempted position.

                Stop taking shots at me when all that I have done is give you back your own words.

                You have provided NO answers – none – on this point, because you keep on looking for others to provide something more.

                1. Anon: You are plainly a Constitution naive person. Period. You are oblivious to SCOTUS succincely written decisons put squarely under your nose on U.S./State citizenship and what the United States Constitution provides for protection of one’s U.S./State citizen. Congress’ passage of The Indian Citizenship Act of 1924 made them citizens on the same footing as a person ‘naturalized’ or born here.

                  Lastly, this position affirms you lack any knowledge of any of the SCOTUS decisions and the United States Constitution’s protection of one’s citizenship and the roll played by Congress…you are oblivious to these few words from SCOTUS’ decision regarding U.S./State citizenship>“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.”

                  No. You don’t understand simple SCOTUS decisions that the United States Constitution:

                  “I understand full well that a mere act of Congress cannot have the “Constitutional significance that you BOTH seem to want AND that YOU have said cannot happen.”

                2. Paul,

                  You are not answering the points put to you.

                  All that you are doing is name-calling.

                  Nothing more.

                  Your position remains infirm, and it is your own rebuttals (and lack of understanding about the “not abridge” concept) that STILL has you (not anyone else) trying to put Constitution changing power into a mere act of Congress.

                  The act of 1924 cannot abridge what we there prior to the act of 1924.

                  You continue to act BOTH as if it does, and that the abridgment is copacetic with the Supreme Court words you quote – but apparently do not grasp.

                  No one need give you anything until YOU square the items that you yourself have put on the table.

                  Calling others names does not help YOU do that, so I suggest that you stop calling names and start fixing the very things that you have provided.

                3. Anon: You remain a Constitution naive person plus you are unable to read and understand SCOTUS decisions on U.S./State citizenship! When you have read the Constitution, then, you can have a place at the table.

                  “Paul,

                  You are not answering the points put to you.

                  All that you are doing is name-calling.

                  Nothing more.

                  Your position remains infirm, and it is your own rebuttals (and lack of understanding about the “not abridge” concept) that STILL has you (not anyone else) trying to put Constitution changing power into a mere act of Congress.

                  The act of 1924 cannot abridge what we there prior to the act of 1924.

                  You continue to act BOTH as if it does, and that the abridgment is copacetic with the Supreme Court words you quote – but apparently do not grasp.

                  No one need give you anything until YOU square the items that you yourself have put on the table.

                  Calling others names does not help YOU do that, so I suggest that you stop calling names and start fixing the very things that you have provided.

                4. You doing exactly the same thing again is no answer Paul.

                  Quite in fact, it shows that you have no answer to the infirmity in your position.

                  You want to say that a mere act of congress “placed them on the same footing” but you fail to recognize the fact of no abridgment and your own Supreme Court quotes hold against your position.

                  The error is on you.

                  Until (and unless) YOU correct that error, no one need say anything else but merely point to your error.

                  Your accusations of others being “naive” or “oblivious” does not correct the error that you are refusing to address.

                  It is as simple as that, my friend.

                5. Anon: From your most recent post below, I will have to re-assess my estimation of you being merely Constitutionly naivete to one of being Constitutionly stupid!

                  They are U.S./State citizens as of 1924…nothing more and nothing less.

                  “You doing exactly the same thing again is no answer Paul.

                  Quite in fact, it shows that you have no answer to the infirmity in your position.

                  You want to say that a mere act of congress “placed them on the same footing” but you fail to recognize the fact of no abridgment and your own Supreme Court quotes hold against your position.

                  The error is on you.

                  Until (and unless) YOU correct that error, no one need say anything else but merely point to your error.

                  Your accusations of others being “naive” or “oblivious” does not correct the error that you are refusing to address.

                  It is as simple as that, my friend.

                6. You do not get the “nothing less” unless you take a serious look at what EXACTLY the words “or abridge

                  You do know what “abridge” means, right?

                  All that you have done now is what you have been doing: name calling.

                  That and merely repeating word for word my posts to you.

                  That just won’t fix your error.

                7. Anon> “You do not get the “nothing less” unless you take a serious look at what EXACTLY the words “or abridge”

                  You do know what “abridge” means, right?

                  All that you have done now is what you have been doing: name calling.

                  That and merely repeating word for word my posts to you.

                  That just won’t fix your error.”
                  Anon…read the SCOTUS decision in Osborn (or any of the other SCOTUS decisions). Considering you cannot or will not do so with any Constitutional comprehension, makes further discussion with you a nullity.

                8. Paul,

                  No amount of reading on my part does anything to fix YOUR error.

                  You are just not in a position to have other people do anything.

                  Fix your error first.

                  Then we can talk all about Supreme Court decisions. As it is, you are not even progressing to do ANY talking, as you refuse to even bother investigating your shortcomings.

          2. “[I]t is an important aspect of this case that Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory, Worcester v. Georgia, 6 Pet. 515, 31 U. S. 557 (1832); they are “a separate people” possessing “the power of regulating their internal and social relations . . . ,” United States v. Kagama, 118 U. S. 375, 118 U. S. 381-382 (1886); McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 411 U. S. 173 (1973).

            United States v. Mazurie
            419 U.S. 544, 557 (1975)

            1. DRJlaw, well tribes are not organizations for profit or not, ventures, collectives of individuals or any such. They are instead nations, albeit, not independent of the United States because they are “conquered.” Thus, I think, relations between the tribes and anybody else should only be as Congress permits.

              1. Ned, no idea how that relates to a rebuttal of “There is no such thing under the United States Constitution as a ‘sovereign Indian tribe!,’ but you’re free to take it up with the Supreme Court.

                “Thus, I think, relations between the tribes and anybody else should only be as Congress permits.” Same with the States, but I don’t see arguments that the States are not sovereign. It’s not an all-or-nothing concept.

                1. DRLaw, so the US conquers Mexico, but does not annex it. Mexico remains a sovereign nation, but under the power of the United States until released. In contrast, we took the Philippines, Puerto Rico and Cuba that were not sovereign at the time we took them. Yet we made them sovereign and, in the case of Cuba and the Philippines, independent.

                  The Indian Tribes were recognized as sovereign once. They were conquered and placed on reservations. But this did not change their status immediately. They seem more like Mexico than like Puerto Rico. But they were no longer truly independent, like the States.

                  I think the trend in international law is to favor either complete integration or complete independence. When the latter is impossible, the former should be the choice pursued.

                  But, I agree that the Indian Tribes cannot maintain their status as independent sovereign nations because they are not independent. They are today, more like States, and should, I think, be accorded the same status albeit not having a right to elect congressmen etc.

              2. Ned Heller: Provide the Constitutional authority to make your post true!

            2. Have you ever read Worcester? or the first in the Marshall Trilogy on Indian tribal sovereignty, Johnson v. McIntosh? They read somewhat like Dred Scott!

              Pick up a text on American Indian Law by Cohen.

              New Mexico Grad 1999, Best law school ever!!

              1. J Barrera, no I haven’t read any case on this topic yet. I am just arguing based on history and international law.

                I know how the world reacted when South Africa tried to allow the native tribe sovereignty within South Africa, but without integration. Well, that is pretty much they way we treat the Indian tribes in the US. It is a wonder than no one stands up as says that the system is wrong and unjust, perhaps because the tribal leaders themselves like the system.

                It is something we ought to address however, because separate but equal is not really equal.

                1. Ned Heller>”Paul, is Puerto Rico a sovereign?

                  1. It’s people are US citizens.
                  2. It people were conquered (some would say, liberated) just like the Indian tribes.
                  3. If it chooses, we will grant them independence just like we did Cuba and the Philippines.”

                  Ned. Nope.
                  1. You need to brush-up on our United States Constitution.
                  2. The United States Constitution forecloses your proposal for the following Constitutional reasons:
                  U.S. Constitution ›
                  1. Article IV
                  Section 3.
                  New states may be admitted by the Congress into this union; but no new states shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress.

                  The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.
                  2. Section 4.
                  The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.

                  Article I, Section 9, Clause 1:
                  No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

                  Article III, Section 3: Corruption of Blood and Forfeiture
                  The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

                  The United States currently has sixteen territories. Five of them are permanently inhabited and are classified as unincorporated territories: Puerto Rico and the U.S. Virgin Islands in the Caribbean; Guam and the Northern Mariana Islands in the Marianas archipelago in the western North Pacific Ocean; and American Samoa in the South Pacific.

                2. Paul, I would say your reading is very odd given that Puerto Rico has its own government and its land is not US property as far as I can tell. It’s status is that of a conquered nation and it is being treated as such.

                  I haven’t looked into the details on this, but the question does intrigue.

                3. Dear Ned,
                  “Paul, I would say your reading is very odd given that Puerto Rico has its own government and its land is not US property as far as I can tell. It’s status is that of a conquered nation and it is being treated as such.

                  I haven’t looked into the details on this, but the question does intrigue.”

                  Nope. You did not read my last post…Puerto Rico is a United States Territory. Plain and simple. Faux “Indian tribes” are a political fraud upon the Constitution and possess none of the attributes of being a ‘territory’ of the United States…U.S./State citizens with “Indian ancestry/race” residing on faux “Indian reservations” are merely renters with ‘rights of use and occupancy’ only…the land is owned by the People of the United States with rare esception according to federal documents readily available on line
                  link to puertoricoreport.com;
                  Puerto Rico is a territory of the United States. It became a U.S. territory in 1898, when it was acquired from Spain after the Spanish-American War.

                  With approximately 3.5 million residents, Puerto Rico is the most highly populated of all United States territories. People who are born in Puerto Rico are U.S. citizens.

                  The power of Congress over territories is exclusive and complete, as described under Article IV of the Constitution:

                  The Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.

                  A piece of land belonging to the United States can be only a territory or a state under U.S. law.

                  Why are people sometimes confused over whether Puerto Rico is a territory?

                  Some people claim that a law passed by Congress in 1952 changed Puerto Rico’s Constitutional status from a territory to a “Commonwealth.” Original documents dispute this claim. The term “commonwealth” has no special legal status in the United States; for example, Kentucky is a commonwealth and also a state, but this doesn’t make Kentucky different from Louisiana in its relationship to the Federal Government.

                  Read original authoritative sources confirming that Puerto Rico remains a territory of the United States.

                  The legal foundation of Puerto Rico’s status within the United States can be found in Article IV, Section 3, Clause 2 of the United States Constitution, commonly known as the “Territorial Clause” — “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” Constitution of the United States of America, Article IV, Section 3, Clause 2

                  Executive Branch Statements

                  Report by the President’s Task Force on Puerto Rico’s Status, March 2011, p. 26 Under the Commonwealth option, Puerto Rico would remain, as it is today, subject to the Territory Clause of the U.S. Constitution.”

              2. Once U.S./State citizenship was achieved, stare decisis made moot your post as they are U.S./State citizens. Cohen’s work was post the Indian Citizenship Act of 1924, making his book moot.

              3. Ned Heller: Post The Indian Citizenship Act of 1924, there are no more “Indians” within the original meaning of the U.S. Constitution…only 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 notion of “Indian tribes” is a politicial fraud upon the Constitution.

                1. See here – again and again – you proclaim an Act of Congress to have Constitution changing power.

                  You keep on skipping over the “no abridge” portion as you do that very thing: abrdge.

                2. Paul, is Puerto Rico a sovereign?

                  1. It’s people are US citizens.
                  2. It people were conquered (some would say, liberated) just like the Indian tribes.
                  3. If it chooses, we will grant them independence just like we did Cuba and the Philippines.

            3. DRJlaw: Provide the United States Constitution’s source of authority to make your post true post The Indian Citiznenship Act of 1924.

    4. The United States Constitution makes for no provisions for:
      1. Indian sovereign nations.

      It doesn’t make any provisions for Japanese sovereign nations either.

      1. MM: You clearly do not understand the U.S. Constitution. Your post is irrelevant to the issue of a faux “Indian tribe” claiming ‘sovereign Indian nation’ status. Japan is an internationally recognized ‘nation-state’…faux “Indian tribes” are not!

        Secondly, Japanese Ambassodors and Consultant members can be expelled for no reason by We, the People of the United States as Ambassadors and Consulate members are merely guests of We, the People.

        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.

        1. PRG you are missing MM’s sarcasm – he was obviously alluding to the transporting and confining of U.S. citizens of Japanese ancestry in U.S. reservation camps in the dessert during WWII [and their land taken by forced sales], like Indian tribes. Approved by a now notorious Sup. Ct. decision.

    5. This looks like the e-mails in my spam folder.

  11. Of course, a major difference with the university situation is that the university patents are the outcome of original university research

    GIVEN that patents were designed from the start of this country to be fully alienable, why is this a pertinent difference, let alone “a major difference”…?

    Journalism of 580 nm wavelength – not really needed, now is it?

    1. why is this a pertinent difference

      Remember, folks: “anon” is a very serious person! A truly deep thinker and not biased like everybody else.

      1. Your “very serious” poker tell aside, what possible point are you trying to make?

        Or do you disagree with any of the facts in my comment?

        Speak up Malcolm – TRY to say something intelligent.

        (it’s like you and Trump and twitter….)

    2. anon asks: GIVEN that patents were designed from the start of this country to be fully alienable, why is this a pertinent difference, let alone “a major difference”…?

      The post says: 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. …. 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

      I’m not entirely sure how this would play out in litigation or what the arguments would be, but “sham” transactions aren’t treated the same under the law as legitimate ones. Think of bankruptcy, or tax, or antitrust. If you transfer all of your property to a relative the day before filing for bankruptcy, your creditors might still try to get that property. The transferred property may be “fully alienable” in principle, but the transaction might not be given the legal effect the transferor wants.

      I have no idea what the right answer is after one does the research, but I tend to agree with Dennis that this raises interesting questions and that Allergan’s lawyers have almost certainly thought all of this through.

      1. And, I meant to add: if the question comes up of whether this is a sham, parties and courts might compare this transaction to other practice. State universities typically take advantage of sovereign immunity privilege when it comes to patents on their own original research. This is either a unique example or a rare example of a “sovereign” being paid to take a patent in exchange for granting a private company the legal benefits of sovereign immunity. Maybe that’s totally ok, but the oddity of the situation would seem to be relevant to any “sham” inquiry, regardless of whether patents are “fully alienable.”

        1. State universities are an arm of the state itself thus the ‘immunity’ under the 11th Amendment. Faux Indian tribes are merely a political fraud upon the Constitution…they are U.S./State citizens with “Indian ancestry/race” entitled to no more and no less than every other non-Indian U.S./State citizen. No one has presented any Amendments to the Constitution to change their status under the Constitution’s protection of their citizenship.

        2. It’s not a sham. A University owned patent would enjoy the same 11th Amendment immunity whether it was donated (re: ‘assigned’) or ‘invented’ under the BD act funding and assigned by the inventor.

      2. del: The notion that ‘transferring patent’ titles to faux Indian tribes because they-the tribe-can assert ‘Indian tribal sovereignty as a nation’ is itself a U.S. Constitutional myth. Ergo, the whole ploy rests on that myth. Opponents to Allergan’s ploy can debunk this strategy by demanding an answer in court to this 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?”

      3. Your point on “sham” is indeed a valid counter point to raise.

        Thank you dcl, for applying some critical thinking (and making Malcolm look even more the arse for his unthinking snipe).

        As to whether the alienable property has been transacted as to present a sham or not is, of course, a different calculus.

        Proving a sham has typically been a somewhat high hurdle. Here, that proof would likely need to show that one or both sides did not obtain some benefit of the bargain.

        I do not think that such could be shown.

        Did the tribe benefit? Surely. They obtained property at a great price.
        Did the previous property owner benefit? Just as surely***.

        Since there is benefit on both sides, the charge of “sham” will not likely stick.

        ***(provided of course, that their aim holds – others have raised interesting counter points that may throw some doubt on that)

        I note three things here:

        First, the fact that the sale price was relatively cheap is not a factor for showing sham. Instead, it plays the opposite role as it it the lever by which benefit for both sides was obtained.

        Second, the fact that a benefit (outside of tax) is the reason for the transaction is ALSO not a factor for showing sham. Such may be deemed “unpalatable” or “tricky” but such emotive feelings are not within the LEGAL calculus for sham.

        Third, There is no fact pattern here to apply the other indicators of sham. This is just not a fact pattern of bankruptcy, tax, or antitrust. The fact of the matter in that the transaction DOES have a role in trying to avoid the effect of a law is not dispositive. Otherwise, ALL “deals” that have tax consequences (including notably one mentioned here involving the very same party) would have to be reversed.

        Interestingly enough, “sham transaction” has a very specific (read that as limited) meaning. The online version of Black’s law dictionary lists that meaning as:

        A transaction that serves no purpose and provides no benefit economically but it used for the purpose of tax evasion.

        Law Dictionary: What is SHAM TRANSACTION? definition of SHAM TRANSACTION (Black’s Law Dictionary) – see link to thelawdictionary.org

        As I noted – both sides DO obtain economic benefit AND this transaction has NOTHING to do with taxes.

        I will also note that your follow-on merely reflects a fact of the circumstances of which particular ownership of property – through other laws than patent laws – have their natural wrinkles. Such “oddities” are not considered “illegal,” and are not a basis for “sham” consideration.

        I will also note that sometimes “sham” is defined more broadly.
        See link to kessler.co.uk for an excellent discussion of the broader view.

        Please recognize that this may not be binding US law and is shared merely to take the point of view that “sham” might be considered more broadly than that which Black’s Law dictionary indicates.

        I would daresay that even under such a broader view, the charge of “sham” – in its legal sense – will not stick.

        1. Thank you dcl, for applying some critical thinking

          ROTFMLAO

          He was teaching you the obvious, you p@ thetic little t ur d.

          1. Nice – nothing from you but more baseless and mindless ad hominem.

            Maybe you want to pay attention to the counter that I supplied to his “at least it was an attempt” comment.

            Did Trump let you off twitter-duty…?

          2. Please Pardon Potential (re)Post…

            Nice – nothing from you but more baseless and mindless ad hominem.

            Maybe you want to pay attention to the counter that I supplied to his “at least it was an attempt” comment.

            Did Trump let you off twitter-duty…?

  12. I don’t understand how this strategy would work.

    The PTAB decisions about state colleges/universities are based on Eleventh Amendment immunity. On those cases, the IPR statute is trumped and cannot impede on the states’ sovereign immunity under the 11th Amendment.

    But Native American tribes do not enjoy 11th Amendment immunity; their immunity is a function of federal common law and Congress has near plenary statutory authority over the tribes. Congressional statutes can abrogate or supersede tribal immunity, without constitutional issues.

    Tribal immunity is more about immunity from the states over Native American tribes, based on federal supremacy over Native American affairs.

    But AIA is federal. So the argument is simple; by enacting the AIA and subjecting issued patents to AIA reviews, and not making any exception for patents owned by Native American tribes, it abrogated any sovereign immunity that may have applied.

    The patents obviously weren’t invented or originally prosecuted by the tribe; given the fact that the immunity is federal common law and policy-based (and not 11th Amendment-based), I can see that policy-based arguments about how manipulative this is, will be very receptive.

    1. There is no such thing under the United States Constitution as ‘tribal immunity!’ As of the Indian Citizenship Act of 1924, there are no more “Indians” within the original meaning of the Constitution…only U.S./State citizens with “Indian ancestry/race” entitled to no more and no less than every other non-Indian U.S./State citizen. Politicians-state and federal-are dumbing down as gullible non-Indian citizens they can pass common law that makes the health, welfare, safety and benefits of a select group of U.S./State citizen with “Indian ancestry/race” distinguishable from all other non-Indian U.S./State citizens.

  13. I fully expect this news to end up in an Oil States brief.

    AGN only did this deal to avoid the jurisdiction of the unconstitutional PTAB, er, kangaroo court.

    The Tribes are the new Ireland.

    And the Efficient Infringement lobby will have to shelve its patent troll name calling. Not politically correct.

    1. This is entirely legal and great lawyering by a top law firm. Tax inversions are legal and so is this.

      Payback is a bitch.

      And professor: Great final exam question somewhere in here. Also a law review article for you and others in the academy.

    2. patent troll name calling

      Aw, the poor widdle snowflake needs a safe zone where he can fondle his patent.

      1. ?

        How very Trump of you, Malcolm.

    3. How would it end up in an Oil States brief? All the anti-IPR briefs have been filed, except for the petitioner’s reply. As as the post notes, “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.”

      If the petitioner thinks it’s worth valuable space in the reply brief to say “pharmaceutical companies dislike IPRs so much that they go to these sorts of lengths to avoid them,” so be it, but I’m not seeing the argument.

      1. The argument will be that big Pharma will use every arrow in their legal quiver in order to avoid the jurisdiction of the unconstitutional PTAB with their rigged panels composed of political hacks. Therefore SCOTUS needs to declare the AIA unconstitutional in order to stop this foolishness.

        1. Bluejay: That is not the question at hand…whether PTAB is or is not Constitutional. The issue is Allergan’s ploy of attempting to hide behind a faux “Indian tribe’s” assertion they are a ‘sovereign nation’ not subject to suit in court to shield Allergan’s patents from challenge in court. The Constitution itself debunks that ploy as there is no such thing under the Constutition as a ‘sovereign Indian tribe!” The whole notion there is, is a politicial fraud upon the Constitution by politicians-state and federal-who cannot produce any source of authority to pass common law that regulates from womb to tomb the capacities, metes and boundaries of a select group of U.S./State citizens since 1924 because of their “Indian ancestry/race!” Once again, any of Allergan’s opponents can debunk Allergan’s ploy by demanding an answer in court to this 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?”

  14. 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.

    …or a fastidiously rational economic actor, as one might expect from a company that gets a lot of value from the patent system.

    1. This view actually strengthens the view that “sham” would not legally be found.

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