Evasive Maneuvers to Avoid Patent Challenges

Inter Partes Review (IPR) is an important tool that Congress enacted as a bi-partisan solution to allow the PTO to eliminate bad patents efficiently.

There are many advantages in allowing the PTO to police its own patent-granting decisions: PTO reexamination of granted patents is cheaper, faster, and benefits from the greater technical expertise PTO holds to review patents than generalist judges.

When IPR eliminates a bad patent, it cancels a government-granted monopoly and allows competition to lower prices. IPR is a thorn in the side of patent-system abusers, because IPR makes it easier to get rid of the bad patents they rely on to drive up drug prices.

Drug maker Allergan has attempted to evade review of the patents on its blockbuster drug Restasis by transferring them to a Native American tribe, which then claimed that the tribe’s sovereign immunity protected the patents from challenge through IPR.

A separate, federal court found Allergan’s patents invalid, and Allergan is appealing that decision. Big Pharma and its supporters have doubled down on attacking IPR –attempting to transform the outrage behind this case into a larger attack against the legitimacy of IPR. Brand name pharmaceutical companies want to eliminate the IPR process altogether, which would make it harder to challenge patents that do not represent valuable innovation.