N.D.Ill., disagreeing with Ohio court, upholds patent qui tam constitutionality

by Ben Vernia | May 2nd, 2011

In an April 28 decision in Simonian v. Allergan, Inc., Judge Amy J. St. Eve of the Northern District of Illinois denied the defendant company’s motion to dismiss the patent qui tam suit. The company argued that the qui tam provision of false-marking statute, 35 U.S.C. ยง 292, violates the Take Care clause of the U.S. Constitution. The company acknowledged the constitutionality of qui tam statutes generally, but distinguished the patent law from the False Claims Act on the grounds that the FCA gives the government greater notice of, and control over suits.

Disagreeing with a February decision by Judge Dan Aaron Polster of the Northern District of Ohio, Judge St. Eve wrote:

Allergan mistakenly assumes, however, that the FCA resides at the floor of constitutional adequacy, such that any statute that authorizes qui tam actions but does not provide the full panoply of express rights to the Executive Branch contained in the FCA necessarily runs afoul of Article II, Section 3.

She reasoned that qui tam actions under the patent law were civil, not criminal in nature, and that therefore, the direct-control test of Morrison v. Olsen did not apply to the same degree in that setting. Reviewing the statute, she concluded that its notice and intervention provisions gave the government sufficient control.

(Although the suit does not directly implicate the False Claims Act, challenges to the patent qui tam presumably could lead to Supreme Court review, and bring the FCA qui tam provision into question.)

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