The problem with these arguments is that even if they are all true (which is questionable,) they are besides the point. The issue at stake is whether renting sovereign immunity to evade having to defend the validity of your patent is either permissible or should be permissible. Indeed, Judge Bryson admonished Allergan for being “conspicuously silent about the broader consequences of the course it has chosen.” (Allegan v. Teva, Dkt. 522 at 4-5). Mr. Saunders op-ed in The Wall Street Journal is equally silent.
Read MoreViewed through that lens, the Respondents argue there is nothing unconstitutional about IPRs. Congress was expressly given the power to grant patents within the Constitution. Congress has delegated that power to a federal agency, namely, the USPTO. Any “right” to a patent therefore derives directly from a Federal Government action, and by that token, it is a public right. In other words, patents do not embody a natural right of the inventor to exclude others from using his or her invention. Rather, a patent only exists because Congress has expressly provided for it.
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