Allergan and the St. Regis Mohawk Tribe will continue their legal battle in defense of a patent agreement struck in 2017, appealing a lower court decision to the U.S. Supreme Court, according to STAT.
In 2017, Allergan transferred six patents to its best-selling eye medication, Restasis, to the Mohawk tribe in an effort to prevent generic competition from entering the market. At the same time, Allergan was facing a patent challenge from several generic manufacturers, including Mylan, Teva and Akorn. The three generic drugmakers petitioned for what is known as an inter partes review, a separate legal process overseen by a unit of the U.S. Patent Office.
The controversial deal struck with the Mohawk tribe sought to protect the Restasis deal from legal review, as the drugmaker believed the sovereign tribal government had immunity from inter partes review.
Allergan paid the tribe $14 million and agreed to pay another $15 million in annual royalties. The Mohawk tribe then worked to get the challenges dismissed before the patent board.
But the patent board decided that tribal immunity doesn't apply to inter partes review cases in February 2018. In July 2018, the decision was upheld by a federal appeals court, which ruled a Native American tribe can't claim sovereign immunity to sidestep an inter partes review. .
Now, Allergan is asking the Supreme Court to reverse that ruling. In its argument to the Supreme Court, Allergan and the Mohawk tribe argue that the federal appeals court "fundamentally misconstrued" an earlier case that informed their decision.
The Supreme Court may decide not to review the case.
The unusual patent deal immediately caused an uproar by lawmakers and consumers, who called the move a payoff to avoid competition.
Read the full report here.