Update on Sovereign Immunity as a Defense in Post-Grant Proceedings

Firm Thought Leadership

In early September the pharmaceutical company Allergan announced a surprising transfer of its patents related to the billion-dollar dry-eye drug Restasis. Rather than transferring them to another drug company or investor as one might expect, the drugmaker transferred them to a Native American Tribe in New York, who immediately granted Allergan an exclusive license. Allergan undertook this unusual maneuver to take advantage of several recent decisions by the PTAB relating to post-grant challenges. As previously reported on this blog,1 the PTAB has determined that sovereign immunity under the Eleventh Amendment is available as a defense in post-grant review proceedings for patent owners that operate as an arm of a state.

To read the full article on our PTAB Trials Blog, click here.

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