Bonum Certa Men Certa

Judge Bryson Rules Against Allergan After It Used Native American Tribes to Dodge Scrutiny of Patents (IPRs); Senator Hatch Does Not Understand IPRs

William Bryson



Summary: Having attempted to dodge inter partes reviews (IPRs) by latching onto sovereign immunity, Allergan loses a key case and Senator Hatch is meanwhile attempting to water down IPRs albeit at the same time bemoaning patent trolls (which IPRs help neutralise)

THE above judge, Judge Bryson, called it a "sham" and US Congress got involved too. It's an old issue [1, 2, 3] that emerged a few months back. Can tribes exploit their sovereign immunity to help patent trolls and other aggressors?



As Judge Bryson sees it, this exploitation of Native Americans by patent bullies and trolls is a serious issue. The case is therefore falling apart, as reported less than a day ago by a trolls expert. To quote:

A federal judge ruled today that patents protecting Allergan's $1.5 billion blockbuster dry-eye drug, Restasis, are invalid due to obviousness. The international drug company's stock dropped about five percent on the news.

The ruling by US Circuit Judge William Bryson could have wide effects on the patent landscape because the Restasis patents are at the center of a novel legal strategy that involves using Native American sovereignty rights to avoid certain types of patent reviews, called inter partes reviews, or IPRs.

[...]

Restasis was approved by the FDA in 2002, three years after Allergan began the drug-approval process. Allergan had an original patent on the formulation, known in the case as the Ding I patent, US Patent No. 5,474,979, which was filed in 1994 and expired in 2014.

In a 135-page opinion (PDF) published today, Judge Bryson found that Allergan's patents on later formulations were obvious in light of the Ding I patent, as well as two other patents known as the Sall patent and the Ding II patent.


Yes, it's 135 pages long!

As we noted last night, next month there will be oral proceedings in a case that can determine the future of inter partes reviews (IPRs). The Supreme Court (SCOTUS) will quite likely (re)affirm the authority of PTAB to invalidate patents (like Allergan's patents) and the subject is therefore entertained a lot by the trolls' lobby. The attacks on PTAB in the lobbyists' media (The Hill) are quite telling. This example from yesterday speaks about the Hatch-Waxman law and says that the "2011 AIA was a solution in search of a problem." AIA is what ushered in PTAB and it tackled a very obvious problem.

Considering who's behind these attacks on PTAB -- and their motivations -- it certainly means that the "right" people worry. These latest attacks acknowledge that patent trolls are a nuisance, but they also devolve into criticisms of PTAB (that stops trolls). Here is one key portion:

The AIA was intended to stymie patent trolls that bought up patents they never intended to use. Hedge funds, individuals and companies purchased patents not with the intent to protect their manufacture of innovative products, but to sue innovators who had their own, similar patents. Stopping this practice was a laudable goal that made sense for technology like software code and cell phone hardware.

However it was never intended to be applied to pharmaceutical innovation, where the so-called Hatch-Waxman law, which created a pathway for generic drugs, had already effectively balanced the interests of brand-name and generic drug manufacturers. Especially with regard to pharmaceuticals, the 2011 AIA was a solution in search of a problem.

The PTAB alternative to the courts has been widely condemned by patent-holders in a number of industries, chiefly the innovative pharmaceutical industry, which considers it to be unfair, unnecessary and anti-innovation. (The Supreme Court will take that up next year). Other, non-stakeholder observers, including one Federal Circuit Court decision, have reservations as well, calling the panels’ actions “arbitrary and capricious.”


Actually, almost all the PTAB bashers are in the litigation 'industry'; many are trolls or work for trolls. We have provided plenty of evidence to that effect.

Speaking of the litigation 'industry', watch yesterday's article "Hatch Hints At Changes To Patent Law". It says this:

Senator Hatch discussed venue in non-practicing entity cases, possible reforms to IPR proceedings, and recent Supreme Court subject-matter eligibility case law. While Senator Hatch essentially punted on IPRs as something warranting Congress’s attention, he did not mince words when criticizing “patent trolls” and praising the Supreme Court’s recent TC Heartland decision. But he also expressed concerns about whether the Court’s subject-matter eligibility case law has gone too far, endangering life sciences and software development companies as a result.

Senator Hatch was blunt in expressing his views on non-practicing entities. He wrote that patent trolls “extort settlements” and “have become a serious drain on our economy.” He approved of the Supreme Court’s recent decision in TC Heartland, arguing that it “put a stop to rampant forum-shopping.” He nevertheless believes that “some unanswered questions remain” in the wake of TC Heartland. He cited, for example, the need to develop an answer to what constitutes a “regular and established place of business.”


Perhaps Senator Hatch does not fully understand the importance of IPRs. These are, in very many cases, thwarting attacks from patent trolls which target literally thousands of businesses. You cannot really be against trolls and at the same time against IPRs. Unless, of course, you don't quite comprehend the situation (perhaps because someone lobbies and deceives you). ⬆

Recent Techrights' Posts

Microsoft 'Buyouts' Sound Just Like 60,000 Layoffs of 'Expensive' or More Experienced Staff ('Soft' Layoffs or Even Worse, Negligible Severance)
This is not a "gift" to staff, it's just a pink slip with a hundred dollar bill attached to it
Intercontinental Brigading - Part XV - Annualised Consequences for Opposing Microsoft Back Doors in Linux Since 2012
a roundup of what we got from GGG
In Reporting, Timing is Everything
If you keep calling people "paedophiles" when you yourself are connected to paedophiles (or are a paedophile), you're attracting a lot of unwanted attention to yourself
 
Intercontinental Brigading - Part XVI - The Faustian Pact That Irritates Hired Guns is Still a Distraction From the Serious Harm Done by Their Clients to GNU/Linux Users (Notably Plagiarism and Back Doors)
We'd rather talk about the harms caused
Links 26/10/2026: Microsoft Chaffbot "Building Detailed Psychological Profiles of Its Users", Man Executed for Childhood Offenses
Links for the day
Gemini Links 26/10/2026: Writing Down Dreams and "Sabbath as Resistance"
Links for the day
The Register MS Gets Rid of Disclosures About Paid-for Spam Regarding "AI", It Also Composes Fake News for the Sponsors
Selling away its credibility is known as "Sellout"
This is How Microsoft Ends (Over a Quarter of the Company Now on the Chopping Block)
Microsoft has quit pretending
Search Without Encryption for Legacy Systems (Permacomputing) and Full Backward Compatibility
At your own risk
Shift to the Lula (Left)
Lula is a friend of Free software and ODF
More Stories and Material Than We Can Publish
We're gaining or have amassed material faster than we manage to publish
European Patent Office Takes From the Poor to Give More to the Rich
The "pension schemes are overfunded at 120.5%"
Links 26/10/2026: China’s Communist Party Plenum and Aleksandar Vucic Concedes Defeat
Links for the day
Links 25/10/2026: Microsoft Layoffs and Cuts, Luiz Inácio Lula da Silva Wins Election
Links for the day
Gemini Links 26/10/2026: Brazilian Politics and Leaving Bear Blog
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, October 25, 2026
IRC logs for Sunday, October 25, 2026
Another Form of Microsoft Silent Layoffs: Workers That 'Expire'
When the media becomes a lapdog, not a watchdog, false narratives gain traction
Carte Blanche for GPL Violations 4 Days Ago (by Torvalds)
Slop disclosure is no longer required for the Linux Kernel
There Are No Women That Are Kernel Developers Sent by Corporations Which Claim to Champion Diversity
As noted the other day
Sites with "Linux" in Their Name Cannot Slop and Retain Readers
if they write about "linux "(or "Linux") using LLMs they will be caught, then shunned
At Microsoft, the Silent Layoffs Impact Executives Also
Microsoft hid the real story of Helen Chiang
Linus Torvalds Defected to Enshittification
Linus Torvalds is betraying a generation of high(er) standards
Links 25/10/2026: TMZ Revisits Epstein's Connections to Bill Epsteingate, "Italy Hit by New Cost of Living Protests"
Links for the day
Microsoft’s Spin About Mass Layoffs and Shutdowns: They "Never Should Have Existed"
Microsoft-sponsored spin
It's Slop
Maybe we'll exclude It's Slop from our curation. It's a Linux Foundation outpost of sorts, an apologist of sloppy code and plagiarism.
Intercontinental Brigading - Part XIV - Six Years of Learning Irish, But the Real Issue Was Microsoft-controlled 'Secure' (Restricted) Boot
Had I not opposed back doors in Linux, not of this would come about
Gemini Links 25/10/2026: Moana (2026) and OpenBSD Updates
Links for the day
The Netherlands Fast to Adopt GNU/Linux, "Market Share" Rises to Two-Digit Value (on Desktops/Laptops)
It peaked at around 20% yesterday
DST Still Needs to Get Abolished
Get rid of DST, efficiency will improve and systems will become more reliable
PHP2Shell as Paid-for FUD Campaign (Intended to Help Sell Slop and Fake "Market Value" of Slop Pushers)
PHP2Shell considered overhyped [...] Remember all the paid-for hype regarding Mythos? What happened to all that?
Microsoft Sort of Tried to Sell XBox Piecewise (Offloading Microsoft)
XBox is in a morbid state
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, October 24, 2026
IRC logs for Saturday, October 24, 2026
Gemini Links 24/10/2026: Arch Linux Journey and Amin Bandali's Priorities
Links for the day
Bluewashing as a Form of Silent Layoffs
IBM will continue to shed off loads of workers while its debt climbs
Turning 20 in 2 Weeks and Upcoming Network Maintenance
That ought not interrupt our anniversary
Microsoft Shutdowns Accelerating, More Shutdowns Revealed (Not Connected to Gaming)
Silent layoffs disguised as "voluntary" "exits"
Links 24/10/2026: Microsoft Blackmail and Lingering Unrest in France:
Links for the day
Gemini Links 24/10/2026: From Bendigo to Kerang, Enshittification of Radio and Music in the UK
Links for the day
Red Hat Sinks With the Blue (IBM) Ship
As IBM's debt continues to soar so do the silent layoffs
Linux is Not Controlled by Linus (Torvalds)
Torvalds has become "90% marketing hype"
The "No Pain No Gain" Expectations in Publishing
Sometimes truth hurts; but that does not mean it mustn't be told
Intercontinental Brigading - Part XIII - Censorship by All Means Available in a Continent So Far Away, as 'Secure' (Restricted, Restriction by Microsoft) Boot Has a Crisis of Legitimacy
it's about America controlling sites and computers everywhere
Links 24/10/2026: Oligarchs Already Buy US Elections, GAFAM Front Group "EFF" Speaks of "Vulnerability Apocalypse"
Links for the day
Gemini Links 24/10/2026: Automobile Differential Tire Movement, Samsung Washer Woe, and Slop Scraping
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, October 23, 2026
IRC logs for Friday, October 23, 2026