As Promised: The Dueling Restasis® Memos (Public Versions) On Joinder Of The St. Regis Mohawk Tribe...

The redacted versions have been uploaded to PACER in Marshall, Texas overnight.

I will quote from the defendants' memo opposing the addition of the Tribe to the suit, on the central grounds that the entire license transaction was a sham, to subvert the existing US patent law review process. But I will also link to Allergan's memo setting forth its argument -- as to why joinder might be proper here -- to be fair.

Since Allergan has argued in favor (related to its Botox^® line of products) of exactly what is now arguing against, just one year later (on its Restasis^® lines) -- I'd say the defendants have the better of the argument:

. . . .This transaction was not a genuine purchase of intellectual property by the Tribe. Rather, Allergan paid for the use of the Tribe’s sovereign immunity to thwart the parallel inter partes reviews (“IPRs”) before the Patent Trial and Appeal Board (“PTAB”). Allergan admitted as much in its October 10 filing with the Court conceding that the alleged “consideration” provided by the Tribe was nothing more than the Tribe’s promise not to waive its sovereign immunity in the IPR proceedings. Thus, there has been no real change in ownership — just a maneuver to derail the PTAB’s ongoing review of Allergan’s patents. . . .

The sham nature of the transaction with the Tribe is further underscored by the fact that the Tribe did not pay Allergan a cent for the patents claiming Restasis, which generated $1.4 billion in 2016 sales, or $4 million dollars a day. Instead, it was Allergan who paid the Tribe $13.75 million up-front to take faux title to the Restasis patents. . . .

Further, the illicit purpose of the transaction — to subvert the PTAB’s lawful review and not to facilitate this litigation — provides ample reason to deny joinder. It bears noting in this context that Allergan used the IPR process against a third party’s patent that was inconvenient for Allergan’s best-selling Botox franchise only one year ago. Allergan even sought a stay of parallel district court proceedings on the ground that the IPR “would save both judicial and party resources, consistent with Congress’ intent in passing the America Invents Act.” Allergan Memorandum in Support of Motion Stay, No. 1:15-cv-03372, Dkt. No. 40 at 1-2 (N.D. Ill.). It is remarkable that Allergan considered the IPR process a valid, equitable proceeding for challenging patent validity when it filed its own IPR petition just last year — yet, now that the same tribunal is scrutinizing Allergan patents, Allergan and the Tribe consider IPRs “double jeopardy” administered by a “kangaroo court.” See Ex. 4 at 3. Given its own recent, successful reliance on IPRs, Allergan’s attempt to justify its sham assignment by labeling the IPR process inequitable, harmful “double jeopardy” is pure hypocrisy. . . .

Now you know -- a rainy but happy weekend here -- BladeRunner 2049 is a fine piece of art, and an entertaining diversion. Do re-screen the original, before going to the theater though -- the back story is critical, here. . . "sometimes to show true love, one must disappear -- become a stranger, entirely -- to best protect the immortal beloved. . ." Truer words were never spoken. Out.

नमस्ते