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If nothing else, pharmaceutical giant Allergan deserves points for creativity.

Facing a high-stakes patent validity proceeding at the U.S. Patent and Trademark Office, the company, assigned the IP rights being challenged to the Saint Regis Mohawk Tribe. Because hey—sovereign immunity!

In a sharply-worded order, a federal judge on Monday questioned the tactic, and added the tribe as co-plaintiffs in a parallel proceeding in the Eastern District of Texas, where sovereign immunity wasn’t an issue. And then he invalidated the patents covering blockbuster eye drug Restasis on the grounds of obviousness anyway.

Barring appeal, the decision by Senior U.S. Circuit Judge William Bryson effectively ends the case. Still Bryson, sitting by designation in the Eastern District, left the door open for a strategy that he warned could make sovereign immunity via Native American tribes “a monetizable commodity that can be purchased by private entities as part of a scheme to evade their legal responsibilities.”

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Jenna Greene

Jenna Greene is editor of The Litigation Daily and author of the "Daily Dicta" column. She is based in the San Francisco Bay Area and can be reached at [email protected].

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