After ‘Brazen’ Drug Company Move, McCaskill Takes Action to Protect Consumers with Bill Aimed at Ending Such Deals
In recent deal, Allergan gamed system to avoid patent review by transferring Restasis eye medicine patents to the Saint Regis Mohawk Tribe, which is using tribal sovereignty in attempt to block patent challenge
WASHINGTON – After the pharmaceutical company Allergan’s “brazen” move to exploit a possible legal loophole in order to avoid patent review, U.S. Senator Claire McCaskill is taking action to protect consumers with a bill to close the potential loophole that the company and the tribe are attempting to exploit.
In a recent deal, Allergan transferred patents on Restasis, a blockbuster eye medicine, to the Saint Regis Mohawk Tribe, which has now used tribal sovereignty to argue that the patents should not be subject to challenge at the U.S. Patent and Trademark Office (PTO). The deal, if the tribe’s argument prevails, will make it more difficult for other companies to challenge Allergan’s patents and potentially create generic versions of the eye medicine. The deal could also pave the way for other drug companies to similarly exploit the possible loophole.
“If this drug company thinks I’ll just sit by and watch, while they brazenly exploit loopholes to protect their profits and make Missourians pay more in the process, they obviously don’t know me very well,” McCaskill said. “Any thinking person would look at what this company did and say, ‘That should be illegal.’ Well, I agree. 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’s bill explicitly states that tribal sovereign immunity cannot be used to block PTO review of a patent in a process known as inter partes review (IPR).
Earlier this week McCaskill, the top-ranking Democrat on the Homeland Security and Governmental Affairs Committee wrote the President and CEO of the Pharmaceutical Research and Manufacturers of America (PhRMA)—the most prominent and powerful trade group in the pharmaceutical industry—after the deal between Allergan and the Saint Regis Mohawk Tribe. McCaskill’s letter asks PhRMA to review whether that action is consistent with the mission of the organization and its recent commitment to addressing pricing issues and encouraging responsible corporate practices.
“I urge you to review whether the recent actions Allergan has taken are consistent with the mission of your organization,” McCaskill wrote to PhRMA President and CEO Stephen Ubl. “More broadly, I ask that PhRMA review whether actions to block patent challenges through claims of tribal sovereign immunity align with PhRMA efforts to promote innovation and discourage predatory pricing practices and anticompetitive conduct.”
During McCaskill’s time as the top Democrat on the Senate Special Committee on Aging, she joined Committee Chairman Susan Collins to launch an in-depth investigation into prescription drug price increases.
Visit mccaskill.senate.gov/consumers to learn more about McCaskill's fight to protect consumers.
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