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Abstract

In 2017, pharmaceutical giant Allergan announced an innovative new agreement with the Saint Regis Mohawk Tribe of upstate New York. Allergan was to transfer ownership of the patent of its successful dry eye drug Restasis to the Tribe in exchange for an exclusive licensing agreement. The hope was that the Tribe’s sovereign immunity would protect Allergan’s patent from validity challenges, in which the patent was already embroiled, while allowing them to retain its profits.

The agreement drew immediate outrage from policymakers who saw the agreement as a multi-billion-dollar corporation exploiting a legal loophole to unfairly secure its monopoly. Ultimately, the courts agreed – the Federal Circuit recently denied the Tribe’s assertion of tribal immunity in a validity challenge against Restasis.

While the agreement rightfully did not survive legal challenge, there are aspects to it that are worth considering against a backdrop of utilitarian theories of intellectual property. In the latter half of the twentieth century, utilitarian justifications for patent protections have come to overshadow earlier distributive theories, which prioritized the public benefits over individual property rights. The Allergan-Saint Regis Mohawk Tribe agreement may not be a true distributive model of intellectual property. However, the ways in which the agreement required the transfer of a title from private ownership to a community, a community that did not traditionally benefit from the intellectual property system, are reminiscent of distributive protections that would greatly improve our increasingly individualistic conception of intellectual property.

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