Lawyer Behind Failing Sham To Protect Sketchy Patents Sends Bogus Copyright Cease & Desist To Blogger

You may recall a story we had last fall on a really, really obnoxious and cynical scam to protect sketchy patents by "selling" the patents to Native American tribes. The details here are complex, and that original article has a longer explanation, but the very short version is that in 2010, Congress created a special appeals board to review patents to see whether they never should have been granted. This Patent and Trademark Appeals Board (PTAB) has actually been quite useful in getting rid of sketchy patents, which is why people with sketchy patents hate it, and are trying to get it declared unconstitutional by the Supreme Court.

But, while everyone waits on that some lawyers came up with a fairly devious plan to avoid PTAB review. It started when the PTAB agreed to dismiss some reviews of patents held by the University of Florida, after the University claimed that it had sovereign immunity as a state organization. The lawyers for the University of Florida, from the law firm of Shore Chan DePumpo based in Dallas, apparently sensed an opportunity. Realizing that a state-controlled organization could apparently avoid the entire PTAB process by claiming sovereign immunity, it realized that companies facing challenging PTAB reviews could potentially avoid doing so entirely by "selling" the patents to a "sovereign" organization, which would then license the exclusive rights back to the original patent holder. Effectively, the patent holder would pay a bit of money to some sort of sovereign operation, but would retain all of the rights as before, just structured as an exclusive license.

The big example of this from last fall was the pharmaceutical company Allergan, which seemed likely to lose some of its patents for the drug Restasis under PTAB review. So right before the PTAB was going to rule, the same lawyers engineered a "sale" of the patents to the St. Regis Mohawk Tribe. Allergan would pay the tribe $13.75 million basically for one purpose only: to magically exempt it from the PTAB process. As we noted at the time, this really does appear to be a sham sale for no other purpose than to avoid the PTAB.

The sham not only didn't work, it has backfired spectacularly. In February, the PTAB denied the tribe's motion, clearly recognizing what was going on:

Upon consideration of the record, and for the reasons discussed below, we determine the Tribe has not established that the doctrine of tribal sovereign immunity should be applied to these proceedings. Furthermore, we determine that these proceedings can continue even without the Tribe's participation in view of Allergan's retained ownership interests in the challenged patents. The Tribe's Motion is therefore denied.

Not only that, but the publicity of all of this woke up Congress, which introduced the PACED Act, which is directly designed to stop this kind of activity:

Senator Tom Cotton (R-Arkansas) and Senator Claire McCaskill (D-Missouri) along with Senators Pat Toomey (R-Pennsylvania), Joni Ernst (R-Iowa), David Perdue (R-Georgia) today introduced the Preserving Access to Cost Effective Drugs (PACED) Act, which restores the power of the Patent and Trade Office and federal courts, and the International Trade Commission to review patents regardless of sovereign immunity claims made as part of sham transactions.

In short, this scam hasn't worked out all that well. And it appears that the lead partner at Shore Chan DePumpo, Michael Shore, is a wee bit sensitive about all of this. Roy Schestowitz of the site Techrights.org has been writing about all of the PTAB shenanigans in numerous posts on his site. For example, here's a post he wrote on March 18th, about the anti-PTAB movement. That post, along with earlier posts about the PACED Act included a headshot of Michael Shore, the lawyer mentioned above.

Last week, another lawyer from Shore Chan DePumpo, Shukri Abdi, sent Schestowitz a laughably ridiculous cease and desist letter, claiming that Schestowitz was infringing on Shore's copyright in using a thumbnail of his headshot in those stories.

It has come to our attention that yo