In a blow to the pharmaceutical industry, the U.S. Supreme Court ruled that a controversial procedure for reviewing patent disputes does not violate the constitutional rights of patent holders.
Known as inter partes reviews, these are heard before a U.S. Patent and Trademark Office appeals board, not a court, and anger drug makers because they are easier and faster to pursue than typical patent lawsuits. Drug companies have argued patents are private property that may be revoked only by a federal court and the review process violates a constitutional right to be heard by a court and jury.
In a 7-to-2 ruling, however, the court disagreed with such interpretations.
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Double jeopardy (and with weaker procedural safeguards at that) does tilt the delicate balance established by Hatch-Waxman in favor of generic challengers. But in all fairness, pharma brought this on itself with patent filing after patent filing, year after year, to keep zombie drugs like Restasis “evergreen” long after they should have ceded the market gracefully to generics.