Saturday, September 9, 2017

"Leave It To" One Brenton "Beaver" Saunders... Sheesh.

At the head, let me say that I favor strong but fair intellectual property protection policies, for science based companies -- be they tech- or device- or pharma- or bio-science companies. But after a long patent life, such innovations should go generic. That is only fair. [And poor, non-novel, weak or redundant patents ought to be subject to a robust challenge process -- the strong should survive -- in the Darwinian sense. Patents are, after all. . . monopolies (antithetical to most other free market rules). But that is all just background, to this latest nonsense. This nonsense will only last one more year -- as by then the Supremes will have ruled on this topic. Trust that -- this sovereign "game" is short lived.]

While it doesn't surprise me that Mr. Saunders would use a proud Native American tribe as a "token" -- to shore up his patent estate's immunity from generic challenges, it does disappoint me. This is (of course) the same Brent Saunders who called an anti-inversion tax interpretation by the US Treasury in April 2016 "un-American." In his view it was un-American to suggest that his company (with vast US operations and sales revenue) should just pay the same tax rate as all other US operations based companies. Check. Roger that. [A transparently-calculated move of one financial processing center -- over to Ireland -- ought not be enough to avoid or wildly reduce US taxes on one's company.]

So yes -- I should not be surprised that he would opportunistically exploit the sovereign immunity accorded to native peoples, in order to gain advantage over the USPTO. Here's the bit -- from the New York Times, overnight:
. . . .“Indian tribes have sovereignty that is stronger than states,” Mr. White said, pointing to recent Supreme Court cases that have ruled in favor of tribes. “We feel that we have an extremely strong case.”

Michael Carrier, a professor at Rutgers Law School who studies patent law, called the announcement Friday a “concerning” development, in part because the Mohawk tribe played no role in developing the drug. And he said the administrative-review panel served a worthy purpose. “Challenges at the patent office play a crucial role in overturning invalid patents, and that role could be undermined by agreements like this,” Mr. Carrier said. . . .

It does gall me that (as he learned from Fred Hassan -- and as Martin Shkreli learned from Fred Hassan) there is no goal other than minimizing tax, in the US -- and maximizing revenues retained -- with no acknowledgement that the US provides the best, deepest and richest capital market on the planet for fostering the innovations of his kind of science companies. The hypocrisy is. . . stunning.

And yes, Anon. (you know who you are!), your earlier mention of "he, of the high forehead" is why I wrote this on a fine, cool but sunny Saturday morning, over a hot coffee, OJ, banana and a bowl of the last of this Summer's dark and sweetly-ripe cherries. . . smile. Onward. . . time to work out; then a hot stone massage, this afternoon. . . .



Anonymous said...


From what I read it was actually the Texas law firm Shore Chan DePumpo that approached Saint Regis Mohawk Tribe general counsel Dale White with news of recent legal wins. Then The Saint Regis Mohawk Tribe approached Allergan to test the legal waters.

"The Saint Regis Mohawk Tribe and its counsel approached Allergan with a sophisticated opportunity to strengthen the defense of our RESTASIS® intellectual property in the upcoming inter partes review proceedings before the Patent Trial and Appeal Board," said Bob Bailey, Allergan's Chief Legal Officer."

"In Covidien LP v. University of Florida Research Foundation Inc., IPR2016-01274, IPR2016-01275, and IPR2016-01276, the PTAB agreed with an earlier Federal District Court finding that UFRF is an arm of the State of Florida, and therefore entitled to sovereign immunity. As a sovereign, UFRF cannot be subject to having its patents challenged in any venue to which it does not consent, including IPRs before PTAB. This PTAB decision follows a 2006 Federal Circuit decision where Shore Chan DePumpo LLP represented The Board of Regents of The University of Texas in establishing that sovereigns are not subject to declaratory judgment actions in venues where they have not first filed patent infringement claims. The decision marks the first time the PTAB has dismissed an IPR on sovereign immunity grounds."

condor said...

Thank you, Anon. I do hear you. I might respectfully suggest that yours is a distinction. . . without a meaningful difference.

To my way of thinking (as a law firm law partner, myself), we pitch law and public policy related ideas, to our clients every day. In that regard, the pitch matters less -- than the catch, here.

That is, the corporate law fiduciary duties, however -- owed to a public company's shareholders -- devolve onto the Chairman and CEO. It is Mr. Saunder's role to be the adult in the room. And that is not simply a financial numbers game. It is, in the life sciences, about additional stakeholders, and yes the regulating federal government. Recall that if it wished to, the federal government could regulate this life-saving industry. . . to death.

I for one believe it is wiser not to temp the fates, with gaming moves -- like this one.

In my opinion, CEOs like Mr. Saunders (and formerly like Mr. Hassan and the convict Shkreli) all have one thing in common: they all play Ayn Randian games. They claim to simply be forever fixated on a financial end game, but often have other, more nefarious, goals in mind. Like monopolies -- which by their nature are. . . largely unlawful.

I detest Mr. Trump -- but if his faux brand of populism leads him to meaningfully regulate such chicanery as this -- then, I am for it.

For we all know this is simply a "legalese-infused" way to end run around the sunset dates in the US patents, and around the USPTO patent challenge process.

As I said, though -- in the main post -- the Supremes have this one, next term. And I predict they will kill this whole field of endeavor.

Great stuff -- and thanks!

Namaste. . . .