The patent system is designed to provide incentive and reward inventors for creating new, useful products by giving them a temporary monopoly after they register their patent. As protecting patents from patentability challenges becomes more difficult, companies are using new tactics.

In an unusual move, a pharmaceutical company is attempting to use tribal immunity to protect their patent from a rival drug manufacturer. The opposition calls the move brazen and absurd, but it remains to be seen if the unconventional approach will be effective.

A strategic transfer

Native Americans have a tribal sovereign status and are allowed to legally govern themselves, therefore they have legal immunity. The drug company Allergen is hoping to capitalize on that status in order to protect the patent for their dry-eye drug. Allergen transferred the patent to the Saint Regis Mohawk Tribe in the fall, along with a $14 million payment. The tribe will also relicense the patents to Allergen for a $15 million yearly fee.

A similar instance

The move is similar to another sovereign immunity patent dispute. In two cases, the patent board ruled that patents owned by state universities are not subject to the patent review process because the states were sovereign entities. However, in those cases the universities were the designers and original owners of the patents, whereas the Tribe received the Allergen patent in a transfer. A final court decision is expected in April, but it could change the patent review process.

Considering the amount of time and money it takes to develop a successful drug, it makes sense the pharmaceutical giant would go to such a unique extent to protect their property. Businesses looking for a way to protect their patents will likely be interested in the outcome of the debate this spring.