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Category Archives: IP Antitrust

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Second Circuit To Hear Expedited Appeal in “Product Hopping” Suit

Posted in Healthcare Antitrust, IP Antitrust

On January 6, 2015, the Second Circuit granted defendants’ motion for an expedited appeal but denied their motion for a stay in New York v. Actavis PLC, 14-4624 (2d Cir. Jan. 6, 2015).  Defendants are manufacturers of Namenda, a brand name pharmaceutical prescribed to patients with moderate to severe Alzheimer’s disease.  New York Attorney General [...]

Sham-Wow! Antitrust Liability May Attach to Sham Administrative Petitions

Posted in Healthcare Antitrust, IP Antitrust

Addressing whether the “sham” exception to Noerr-Pennington immunity is limited to sham litigation in courts, the U.S. Court of Appeals for the Federal Circuit vacated a lower court’s summary judgment of no antitrust liability, finding that antitrust liability can attach to sham administrative petitions and that the sham litigation exception is not limited to court [...]

Judge Upholds Poaching Claims in Pharmaceutical Data Antitrust Case

Posted in Healthcare Antitrust, IP Antitrust, Private Litigation

On Friday, August 15, 2014, Judge Gerald McHugh of the Eastern District of Pennsylvania let stand several counterclaims that IMS Health Inc. (IMS) made against Symphony Health Solutions Corp. (Symphony) in connection with related to allegations that Symphony had poached IMS employees to steal trade secrets. In July 2013, Symphony brought a complaint against IMS, [...]

Contractual Duty to Deal Does Not Equal Antitrust Duty to Deal

Posted in Healthcare Antitrust, IP Antitrust, Monopolization/Abuse of Dominance

Addressing for the first time whether a patent holder under a contractual duty to deal is also subject to an antitrust duty to deal, the U. S. Court of Appeals for the Second Circuit upheld dismissal of a putative antitrust class action challenge to a drug manufacturer’s refusal to fully supply competitors’ requested quantities under [...]

Federal Judge Puts Narcolepsy Drug Horizontal Conspiracy Claims to Bed

Posted in Healthcare Antitrust, IP Antitrust

On Monday, June 23, 2014, a Federal Judge in the Eastern District of Pennsylvania granted summary judgment for five pharmaceutical companies on horizontal conspiracy claims brought by Apotex Inc. and direct purchaser and end payor plaintiffs regarding the popular narcolepsy drug Provigil.  Provigil’s key ingredient is modafinil, “a wakefulness-promoting agent” used to treat sleep disorders [...]

FTC’s Reporting Rule for Pharmaceutical Patent Transfers Upheld

Posted in FTC Developments, IP Antitrust

On May 30, 2014, the U.S. District Court for the District of Columbia ruled in favor of the Federal Trade Commission (FTC) in a dispute with the Pharmaceutical Research and Manufacturers of America (PhRMA) regarding the Commission’s authority to require the pharmaceutical industry to report certain transfers of exclusive patent rights under the Hart-Scott-Rodino (HSR) [...]

FTC Asks Court to Reverse Payment Decision

Posted in FTC Developments, IP Antitrust

On May 2, 2014, the Federal Trade Commission (FTC) filed an amicus brief with the U.S. Court of Appeals for the Third Circuit requesting that the court reverse the district court’s decision in Lamictal Direct Purchaser Antitrust Litigation, finding that a “no authorized generic” agreement between branded and generic drug makers does not qualify as [...]

Patent Enforcement Protected by First Amendment?

Posted in FTC Developments, IP Antitrust

After receiving a draft complaint and a stipulated order from the Federal Trade Commission (FTC) banning its allegedly deceptive letters to infringers of its scanning technology, MPHJ Technology Investments LLC (MPHJ) filed suit against the FTC in the Western District of Texas, alleging violations of the First Amendment.  The complaint alleged that the FTC’s investigation [...]

Wisconsin Legislators Pass Bill to Thwart “Patent Trolls”

Posted in IP Antitrust

On March 20, 2014, Wisconsin lawmakers passed a bill in an attempt to limit the ability of non-practicing entities (NPE) – also commonly referred to as “patent trolls” – to file claims demanding patent licensing payments.  Wisconsin Senate Bill 498 applies to all patent owners who wish to file patent infringement claims, but provides exceptions [...]

Lawmakers Go Hunting for “Patent Trolls”

Posted in IP Antitrust

Oregon has now become the second state to take aim at non-practicing entities (NPEs), more colorfully called “patent trolls,” with laws addressing patent enforcement.  On February 25, 2014, the state attorney general announced that the legislature had passed a measure making it a violation of the Oregon Unlawful Trade Practices Act to send a demand [...]

FTC Hit with Lawsuit by Target of its Fraudulent Patent Enforcement Investigation

Posted in FTC Developments, IP Antitrust

On January 13, 2014, MPHJ Technology Investment LLC (MPHJ) filed a seven-count complaint against the Federal Trade Commission (FTC) alleging various constitutional and other violations, including violations of MPHJ’s First Amendment rights and violations of the Separation of Powers Doctrine. The FTC began an investigation into MPHJ’s business practices and in December 2013 served MPHJ [...]

FTC Focuses Enforcement Efforts on Health Care, Technology and Energy Sectors

Posted in Energy/Commodities, FTC Developments, Healthcare Antitrust, IP Antitrust, Monopolization/Abuse of Dominance

On November 15, 2013, Chairwoman Edith Ramirez testified on behalf of the Federal Trade Commission (FTC) before the House Subcommittee on Regulatory Reform on the topic of antitrust oversight and enforcement.  Ramirez explained that the FTC “focuses its enforcement efforts on sectors that most directly affect consumers, such as health care, technology and energy.” The [...]

FTC Initiates Inquiry Into Patent Assertion Entities

Posted in DOJ Developments, FTC Developments, IP Antitrust

by William Diaz Last week, the Federal Trade Commission (FTC) announced its decision to seek public comment on a proposal to gather information from approximately 25 patent assertion entities (PAE).  The agency defines a PAE as a company whose business model focuses primarily on purchasing patents and then attempting to generate revenue by asserting the [...]

NCAA Argues For Dismissal of Athletes’ Latest Antitrust Complaint

Posted in IP Antitrust

by Megan Morley Last week, the NCAA asked the Northern District of California to throw out a suit initiated in 2009 on behalf of former and current NCAA athletes.  NCAA Student-Athlete Names & Likeness Licensing Litigation, case number 4:09-cv-01967.  The athletes claim that the NCAA, its member schools, video game creator Electronic Arts (“EA”), and [...]

Commitment Issues: Federal Jury Awards Damages for Breach of FRAND Obligation

Posted in IP Antitrust

by Stefan M. Meisner and Daniel Powers In the long-running patent dispute between Microsoft and Motorola, a U.S. District Court jury in Seattle found that Motorola breached its commitment to license certain standard-essential patents on fair, reasonable and non-discriminatory (FRAND or RAND) terms.  The jury awarded Microsoft damages of approximately $14.5 million. The litigation has [...]

FTC Reaches Unique Settlement with Phoebe Putney Health System Resolving Lengthy Hospital Merger Challenge

Posted in FTC Developments, Healthcare Antitrust, IP Antitrust, Mergers & Acquisitions

by Carrie G. Amezcua and Stephen Wu The U.S. Federal Trade Commission (FTC) and Phoebe Putney Health System settled the FTC’s complaint that the health system’s merger with Palmyra Park Hospital violated the antitrust laws.  Unique state statutes and regulations effectively prevented the FTC from obtaining its usual remedy for unlawful mergers or acquisitions, a [...]

FTC Takes a Broad, “Generic” Approach to Actavis in Amicus Brief

Posted in FTC Developments, Healthcare Antitrust, IP Antitrust

by Daniel Powers The Federal Trade Commission’s (FTC) battle against “reverse-payment” settlements continues.  In an amicus brief recently submitted in the case of In re Effexor XR Antitrust Litigation, the FTC advanced a broad interpretation of the Supreme Court’s decision in FTC v. Actavis that looks beyond the labels applied to agreements between brand pharmaceutical [...]

FTC Testifies Before Congress on Impact of Patent Hold-up on Competition and Standard-Essential Patents

Posted in FTC Developments, IP Antitrust

by Karne Newburn On July 30, 2013, Suzanne Munck, Chief Counsel for Intellectual Property at the Federal Trade Commission (FTC), testified before the Senate Committee on the Judiciary, Subcommittee on Antitrust, Competition Policy and Consumer Rights, on the impact of patent hold-up on competition, and standard-essential patents (SEPs).  The hearing covered standard-essential patent disputes and [...]

Plaintiffs Abandon Putative Class Action Against Pfizer and Takeda over Protonix

Posted in Healthcare Antitrust, IP Antitrust

by Lincoln Mayer Plaintiffs in a putative class action against Pfizer, Inc. and Takeda Pharmaceutical Co., related to acid reflux drug Protonix, will no longer give the two companies any heartburn.  The plaintiffs stipulated to dismissal from New Jersey federal district court after a settlement in related proceedings that held the patent-in-suit valid and enforceable.  [...]

U.S. International Trade Commission Grants Injunctive Relief on Standard Essential Patent

Posted in IP Antitrust

by William Diaz and Lincoln Mayer The U.S. International Trade Commission has issued an exclusion order barring importation of certain older model Apple products for infringing a Samsung patent. The case is significant because the infringed patent was standard essential and encumbered by a commitment to license on fair, reasonable and non-discriminatory terms. Patent holders [...]

Patent Exhaustion Rejected: Patented Seed Purchaser Has No Right to Make Copies

Posted in Agriculture, IP Antitrust

by Paul Devinsky, Cynthia Chen and Lincoln Mayer The Supreme Court in Bowman v. Monsanto Co. ruled unanimously that a farmer’s replanting of harvested seeds constituted making new infringing articles. While the case is important for agricultural industries, the Supreme Court cautioned that its decision is limited to the facts of the Bowman case and [...]

Western District of Washington Sets FRAND Royalty Rates and Range for SEPs

Posted in IP Antitrust

by Nick Grimmer and Stefan Meisner Last week in Microsoft v. Motorola, the U.S. District Court Western District of Washington became the first U.S. court to set fair, reasonable, and non-discriminatory (FRAND or RAND) royalty rates and range for standard-essential patents (SEPs).  See Findings of Fact and Conclusions of Law, Microsoft v. Motorola, 2:10-cv-01823-JLR (W.D. [...]