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Intellectual Property Law and Antitrust

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Third Circuit Shows No Love For Lovenox® Bundling Theory

Posted  05/6/16
By Ankur Kapoor Citing the well-known maxim that the antitrust laws are concerned with “the protection of competition, not competitors,” the U.S. Court of Appeals for the Third Circuit on Wednesday affirmed summary judgment for Defendant Sanofi Aventis on Plaintiff Eisai, Inc.’s claim that Sanofi foreclosed competition in the market for anticoagulant drugs administered in hospitals. Eisai alleged that Sanofi dominated that market with its Lovenox® product.  In addition to...

First Circuit Boosts Antitrust Challenges To Pay-For-Delay Settlements By Finding Non-Cash Deals Subject To Actavis Scrutiny

Posted  02/25/16
By Rosa M. Morales
Antitrust challenges to so-called “pay-for-delay” settlements—in which brand-name drug makers temporarily keep generics out of the market by making payments to would-be competitors—got a booster shot this week with a big victory in the U.S. Court of Appeals for the First Circuit. The First Circuit held on Monday that even when pay-for-delay settlements do not involve any cash payments, plaintiffs can still challenge those agreements as anticompetitive under the Supreme...

Supreme Court Cites Spiderman In Ruling Against Post-Expiration Patent Royalties

Posted  06/23/15
By Robert S. Schwartz
Spiderman swung through the halls of the U.S. Supreme Court yesterday as Justice Elena Kagan liberally relied on the comic book superhero in the Court’s decision in Kimble v. Marvel Enterprises, Inc., reaffirming the Court’s 51-year-old rule precluding patent owners from collecting patent royalties on expired patents. In 1964 the U.S. Supreme Court ruled in Brulotte v. Thys Co. that the statutory limit on patent terms precludes patent licensors from...

European Antitrust Watchdogs Warn Of Uncertain Future For Pay-For-Delay Settlements

Posted  02/10/15
A View from Constantine Cannon’s London Office By Irene Fraile A recent lively discussion with European Commission competition officials indicates that antitrust enforcement is continuing to evolve to deal with the thorny issues raised by so-called “reverse-payment” or “pay-for-delay” patent litigation settlements designed to delay the sale of generic drugs. On January 29, 2015, Brussels Matters (which hosts informal discussions with senior EU officials) hosted the first pan-EU discussion with...

Feds Green-Light Institute’s New Patent Policy For Wi-Fi Standards, Finding It Potentially Procompetitive

Posted  02/5/15
By David Golden
The Antitrust Division of the U.S. Department of Justice announced on Monday that it would not challenge recent revisions to the Patent Policy of the Institute of Electrical and Electronics Engineers Standards Association (“IEEE-SA”)—giving the green light to new Wi-Fi standards that computers, smartphones and tablets will follow in connecting to the Internet. The Antitrust Division’s decision removes one of the last barriers to the implementation of the revised Patent...

Reasonableness Of Licensing Royalties Is On Trial As Courts And Standard-Setting Organizations Wrestle With Standard-Essential Patents

Posted  01/5/15
By David Golden The ongoing battle over what constitutes a “reasonable” licensing royalty for standard-essential patents has now been joined by the U.S. Court of Appeals for the Federal Circuit with its decision in Ericsson, Inc. v. D-Link Systems, Inc., concerning the alleged infringement of patents essential to the ubiquitous Wi-Fi networking technology. This definitional battle is also being fought in standard-setting organizations, such as the Institute of Electrical and...

Antitrust Regulators Taking Aim At Drug Companies’ “Forced Switching”

Posted  09/25/14
By Rosa M. Morales Signs continue to accumulate that antitrust regulators are on the lookout for innovative anticompetitive tactics by pharmaceutical companies seeking to delay entry of lower-priced generic drugs. This growing interest by federal and state regulators in policing the anticompetitive suppression of generic drugs was the subject of a recent post on this blog by Ankur Kapoor.  Among the antitrust enforcement actions analyzed was a reverse-payment case filed earlier...

Federal Court Denies Class Certification In Intel Antitrust Litigation

Posted  08/7/14
By David Golden Plaintiffs in the long-running In re Intel Corporation Microprocessor Antitrust Litigation class action have suffered a major setback with last week’s denial of class certification by the U.S. District Court for the District of Delaware. The lawsuit, filed in 2005, alleges that Intel illegally excluded its major rival, Advanced Micro Devices (commonly referred to as “AMD”), from the U.S. market for x86 computer microprocessors[1] by paying computer...

Show Me The Money Or Go Home: Federal Courts Wrestle With Addressing Reverse-Payment Settlements After Supreme Court’s Actavis Decision

Posted  03/13/14
By Ankur Kapoor and Rosa M. Morales Nearly a year after the Supreme Court held in FTC v. Actavis that reverse-payment settlement agreements between branded and generic pharmaceutical companies are subject to antitrust scrutiny under the rule of reason, federal district courts are struggling with the thorny issue of whether plaintiffs need to show them the money. More specifically, district courts remain confounded by what constitutes a “payment” for purposes...

Are Bright-Line Rules The Right Prescription For Reverse-Payment Cases?

Posted  03/5/14
By Ankur Kapoor, Jeffrey I. Shinder
As antitrust law evolves to address new problems posed by ever-shifting dynamics in industries both old and new, two schools of thought are vying for control of challenges to reverse-payment settlement agreements that resolve patent infringement litigation brought by pharmaceutical manufacturers against potential generic competition. One school favors the establishment of bright-line rules to give firms and courts predictability in the law.  The Supreme Court’s still controversial Illinois Brick decision,...
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