Mitchell Oates

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FTC’s Latest “Pay for Delay” Action Focuses on Noncash “Payments” and New “Product Hopping” Theory of Harm

By Mitchell Oates on April 5, 2016 Posted in Patents

The Federal Trade Commission (FTC) filed an antitrust complaint this week against Endo Pharmaceuticals and several generic companies, alleging that these companies entered into anticompetitive “reverse payment” settlements of patent infringement litigation under the Hatch-Waxman Act. In its 2013 FTC v. Actavis opinion, the U.S. Supreme Court held that certain settlements involving “reverse payments” may … Continue Reading

FTC’s Amicus Brief in Wellbutrin XL Appeal Highlights Significance for Interpretation of Actavis

By Mitchell Oates on March 18, 2016 Posted in Antitrust Litigation

The FTC has recently weighed in again on the evolving interpretation of the Supreme Court’s 2013 opinion in FTC v. Actavis, 133 S. Ct. 2223 (2013). The agency submitted an amicus brief to the Third Circuit in the appeal of the district court’s September 2015 grant of summary judgment in In re Wellbutrin XL Antitrust … Continue Reading

FTC Weighs in on Upcoming Third Circuit ‘Product-Hopping’ Appeal

By Carl Hittinger and Mitchell Oates on November 19, 2015 Posted in FTC Act, Sherman Act 1

“Product-hopping” refers to a practice employed by some brand-name pharmaceutical companies in which the company attempts to shift users from an older prescription drug that is going off-patent and will soon face generic competition to a newly introduced similar product from that company. Often, the new product will have a significant term of patent protection … Continue Reading

Specific Guidance to Businesses Still Lacking in FTC Principles

By Carl Hittinger and Mitchell Oates on August 31, 2015 Posted in FTC Act

In 1914, Congress passed the FTC Act, creating the Federal Trade Commission. Section 5 of the FTC Act declared “unfair methods of competition in or affecting commerce” to be unlawful and gave the FTC enforcement power over such “unfair methods.” Over 100 years later, that key language in Section 5 underlying the agency’s competition-related powers … Continue Reading

Ruling on Economic Favoritism Puts ‘NC Dental’ Back in Spotlight

By Carl Hittinger and Mitchell Oates on August 17, 2015 Posted in Antitrust Exemptions & Immunities, Antitrust Litigation

In a recent opinion, a divided panel of the U.S. Court of Appeals for the Second Circuit ruled that an economic regulation passed by a state agency solely to protect one group from competition would not violate the constitutional guarantees of due process or equal protection. The court noted that such action might still violate … Continue Reading

Patent Defeats Antitrust in Latest Test at Supreme Court

By Carl Hittinger and Mitchell Oates on July 14, 2015 Posted in Antitrust Litigation, Patents, Sherman Act 2

In Kimble v. Marvel Entertainment, 576 U.S. ____ (2015), the U.S. Supreme Court considered whether to overturn Brulotte v. Thys, 379 U.S. 29 (1964), its 1964 decision holding that it was per se unlawful for a patent owner to charge royalties for use of a patented invention after the licensed patent has expired. In a … Continue Reading

FTC Failure to Adopt Section 5 Guidelines Still Hot-Button Issue

By Carl Hittinger and Mitchell Oates on June 8, 2015 Posted in Antitrust Litigation, Sherman Act 5

Section 5 of the FTC Act gives the Federal Trade Commission the authority to take action against “unfair methods of competition.” The act was enacted over 100 years ago, and its legislative history indicates that it was left to the FTC to provide specific content to this broad and general language. However, there is still … Continue Reading

‘Actavis’ Still Raising More Questions Than It Answers

By Carl Hittinger and Mitchell Oates on May 21, 2015 Posted in Antitrust Litigation, Patents

Nearly two years after the U.S. Supreme Court’s decision in Federal Trade Commission v. Actavis, 133 S. Ct. 2223 (2013), “reverse payment” settlements in patent litigation between brand-name drug manufacturers and potential generic entrants remain a hot topic in the antitrust world. At the American Bar Association’s Antitrust Law Spring Meeting, held in Washington, D.C., … Continue Reading

FTC’s Appellate Win Reflects Focus on Health Care Consolidation

By Carl Hittinger and Mitchell Oates on March 10, 2015 Posted in Antitrust Litigation, Articles, FTC Act, Healthcare, Merger

In an important victory for the Federal Trade Commission in the appellate courts, the U.S. Court of Appeals for the Ninth Circuit recently affirmed last year’s decision from the District of Idaho in Saint Alphonsus Medical Center v. St. Luke’s Health System, No. 14-35173, in which the FTC successfully sued to undo a 2012 merger … Continue Reading