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US senator seeks to block patent 'loophole' used in Allergan, Mohawk tribe deal

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US senator seeks to block patent 'loophole' used in Allergan, Mohawk tribe deal

Sen. Claire McCaskill, D-Mo., introduced a bill that seeks to prevent tribal sovereign immunity from blocking the U.S. Patent and Trademark Office's review of a patent, Reuters reported Oct. 5.

In September, Allergan plc made a deal with St. Regis Mohawk Tribe to shield the patents of its dry eye drug Restasis from review.

McCaskill, who has made a draft of the bill, said: "Any thinking person would look at what this company did and say, 'That should be illegal.' Well, I agree," the news outlet reported.

She pointed out that Congress never imagined tribes would allow themselves to be used by drugmakers to avoid challenges to patents, and this bill aims to "shut the practice down" before other such instances.

The senator previously slammed the arrangement, calling it a "brazen loophole," CNBC reported.

In response to McCaskill's move, the St. Regis Mohawk Tribe said it was "outraged" that the senator "introduced legislation that specifically targets Indian tribes, yet exempts state universities and other sovereign governments engaged in the very same [inter partes review] process."

Further, the tribe said the "double standard" that is being introduced as a solution for a "perceived abuse of the IPR proceedings" does nothing to solve the underlying problem. "The Tribes authority is inherent and has been reaffirmed through treaties and legislation from the earliest days of the country."

"It is cruelly ironic that Indian Tribes, with the highest unmet healthcare needs in the entire country, are being attacked for exercising their sovereign obligation to fill gaps in health coverage caused by the federal government's abject failure to uphold its trust responsibility," the tribe said.

A U.S. House of Representatives committee is also seeking information on the patent deal.

The bipartisan group of four representatives from the House Oversight and Government Reform Committee — Chairman Trey Gowdy, R-S.C.; ranking member Elijah Cummings, D-Md.; Rep. Peter Welch, D-Vt.; and Rep. Dennis Ross R-Fla. — called the deal an "unconventional maneuver."

Allergan CEO Brent Saunders defended the deal after criticism from certain U.S. senators, saying the drugmaker is not trying to shield the patents from review. He also criticized the inter partes review process, calling it "flawed and broken."

Sens. Maggie Hassan, D-N.H.; Sherrod Brown, D-Ohio; Bob Casey, D-Pa.; and Richard Blumenthal, D-Conn., previously requested the Senate Judiciary Committee to open an investigation into the deal.