In response to a controversial bill introduced by U.S. Senator Claire McCaskill, one that prohibits tribal sovereign immunity from being used to block certain types of patent challenges, the Saint Regis Mohawk Tribe issued a statement claiming the new legislation discriminates against Native American Tribes.
“The Saint Regis Mohawk Tribe (SRMT) is outraged that U.S. Senator Claire McCaskill (D-MO), has introduced legislation that specifically targets Indian tribes, yet exempts state universities and other sovereign governments engaged in the very same IPR process. The double standard that is being introduced by the Senator as a solution for a perceived abuse of the IPR proceedings does nothing to solve the underlying problem. The Tribes authority is inherent and has been reaffirmed through treaties and legislation from the earliest days of the country.”
This comes on the heels after Drugmaker Allergan Plc made a deal to transfer some of its patents(Restasis) to the Saint Regis Mohawk tribe over three weeks ago in order to shield them from the inter partes review (IPR), proceedings at the United States Patent and Trademark Office conducted by the Patent Trial and Appeal Board. Restasis, is a dry eye medication used for eye inflammation, is a powerhouse for Allergan. Last year, the medication brought in $1.4 billion in revenue.
Senator McCaskill’s response follows a bipartisan U.S. House of Representatives committee decision to investigate the deal earlier this week and previous calls by Democratic Senators for a probe.
McCaskill said she drafted the bill stating that tribal sovereign immunity cannot be used to block U.S. Patent and Trademark Office review of a patent. McCaskill stated in several media reports —
“Any thinking person would look at what this company did and say, ‘That should be illegal.’ Well, I agree,” McCaskill said in a statement. “Congress never imagined tribes would allow themselves to be used by pharmaceutical companies to avoid challenges to patents, and this bill will shut the practice down before others follow suit.”
McCaskill, who is up for re-election in 2018, may become the champion of the patent infringer lobby in the coming months.
Representatives for the tribe say, “it is cruelly ironic that Indian Tribes, with the highest unmet health care needs in the entire country, are being attacked for exercising their sovereign obligation to fill gaps in health coverage caused by the federal government’s abject failure to uphold its trust responsibility. The fact that the Mohawk community is home to three unmitigated EPA Superfund sites that harm the health of the community and surrounding non-Native communities is a stark example of the government’s failure. Congress shouldn’t double down on its mistakes by denying the Tribe’s sovereign authority in the IPR process”.
As the largest private employer in Northern New York, the SRMT says it has a responsibility to ensure the livelihood and well-being of its tribal members and its hundreds of non-Native employees. According to their press release, the SRMT says it remains committed to working with all Members of Congress to discuss how its recent economic diversification efforts benefits the Tribe, its members, and the surrounding communities without harming competition among pharmaceutical companies (both private and generic) or artificially inflating drug prices.
Allergan has argued that the legal maneuver is aimed at removing administrative patent challenges through inter partes review by the U.S. Patent Trial and Appeal Board, and not challenges in federal court. The drugmaker said it believes that the patents should not be subject to the IPR process – which Allergan has called flawed and broken – because of the tribe’s sovereign immunity.
BY: Regan Jacobs, Executive Producer, Akwesasne TV.
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