A relator who scours public patent filings to “uncover” an alleged fraud against the government cannot avoid the False Claims Act’s public disclosure bar by claiming to be an original source, the Northern District of California held this week.

A single qui tam relator has filed at least three cases against pharmaceutical manufacturers alleging that they fraudulently obtained patents through the presentation of purportedly incorrect or misleading material to the United States Patent & Trademark Office (“PTO”). These alleged frauds on the PTO, Relator contends, led to the improper issuance of patents, which in turn excluded generic competition, led to higher drug prices, and increased amounts paid by the federal government. The information for these complaints came from publicly available records of PTO proceedings.

As we previously reported, in August 2022, the Ninth Circuit held in one of these cases that a patent prosecution was an “other … federal hearing” within the meaning of the public disclosure bar. See United States ex rel. Silbersher v. Allergan, Inc., 46 F.4th 991 (9th Cir. 2022). Thus, unless Relator could show that he was an “original source” of information to the government, the public disclosure bar blocks his claim. As relevant here, an original source is someone “who has knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions, and who has voluntarily provided the information to the Government.” 31...

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