Archives: Patents

BakerHostetler Partners Publish Article Examining Reverse-Payment Suits Five Years After Actavis

Partners Carl Hittinger and Jeffry Duffy authored an article published by The Legal Intelligencer on July 27, 2018. The article, “Actavis and Reverse-Payments Suits in the Third Circuit After Five Years,” examines how purportedly anticompetitive patent-litigation settlement agreements between rival branded and generic pharmaceutical manufacturers—so-called “reverse payment” or “pay for delay” settlements—have generated numerous private lawsuits and remain one … Continue Reading

New Antitrust Division Chief Prioritizes Regulation of Standard Setting Organizations

By Carl Hittinger and Tyson Herrold on December 6, 2017 Posted in Articles, Patents

As we discussed in our May 2017 article, the current head of the DOJ’s Antitrust Division, Makan Delrahim, brings considerable intellectual property experience to the division. Delrahim started his legal career at the Office of the U.S. Trade Representative as deputy director for intellectual property rights. He later served on the Intellectual Property Task Force … Continue Reading

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

Are the Patent Trolls Vulnerable to Antitrust Claims?

By Bill DeVinney on February 1, 2016 Posted in Patents

We previously wrote about the nascent efforts of legislators, regulators, and representatives of technology-dependent industries to use the antitrust laws, such as Section 2 of the Sherman Act or Section 7 of the Clayton Act, to rein in perceived abuses by patent aggregation entities (“PAEs”), more commonly known as patent trolls. One potential difficulty in … 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

Product Hopping and Antitrust: Mylan Court Dismisses Claims on Summary Judgment, Citing Need to Avoid Chilling Pharmaceutical Innovation

By Jeffry Duffy on May 29, 2015 Posted in Antitrust Litigation, Patents, Sherman Act 1, Sherman Act 2

A recent summary judgment opinion from the Eastern District of Pennsylvania breaks new ground in the developing antitrust law on “product hopping” claims. “Product hopping” refers to the practice of changing the form or dosage of a branded drug without changing its underlying composition. Though drug manufacturers often make such changes for legitimate business reasons, … 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 Aggressively Pressing ‘Antitrust Trumps IP’ Theme

By Carl Hittinger and Jeffry Duffy on December 8, 2014 Posted in Antitrust Litigation, Articles, Patents

The Federal Trade Commission has recently brought its considerable institutional weight to bear in two developing areas at the intersection of unfair competition and intellectual property law. Continuing its crusade against “reverse-payment” patent infringement settlements in the pharmaceuticals sector, the FTC is promoting—especially in the Third Circuit—a maximalist interpretation of the U.S. Supreme Court’s 2013 … Continue Reading

Pharmaceutical Association Calls Out FTC in Filing Seeking to Enjoin New Rule Targeting the Industry

By Jonathan Lewis and Lee Simowitz on February 13, 2014 Posted in Government Investigations, Healthcare, Patents, Premerger Notification

Last November, the Federal Trade Commission (“FTC”) with the “concurrence” of the Antitrust Division of the Justice Department, and over the strenuous objection of Pharmaceutical Research and Manufacturers of America (“PhRMA”), issued final changes to the Hart-Scott-Rodino Act premerger notification rules limited solely to pharmaceutical industry. Those special rules relate to the transfer of certain … Continue Reading

Patent Trolls, Anti-Trolls, and Antitrust Law Collide in Patent Licensing Dispute

By Bill DeVinney on December 13, 2013 Posted in Antitrust Litigation, Patents, Sherman Act 1

We previously wrote that regulators are considering using antitrust laws to reign in perceived abuses by non-practicing entities or, more familiarly, “patent trolls” – entities that purchase the rights to patents not to practice the patents but to enforce them through licensing or litigation. In a recent case, antitrust laws are taking center stage in … Continue Reading

Antitrust Treble Damages for Patent Infringement? Yes, According to Groundbreaking Decision

By Danyll Foix and Bill DeVinney on September 26, 2013 Posted in Patents, Sherman Act 2

The Eastern District of Texas recently held that patent infringement can constitute anticompetitive conduct for monopolization claims under Section 2 of the Sherman Act, in Retractable Technologies Inc. v. Becton Dickinson & Co., No 2:08-cv-00016 (E.D. Tex.). After an eight-day trial, the jury for Retractable Technologies found that Becton Dickinson had attempted to monopolize the market for safety … Continue Reading

Supreme Court Rules That “Pay for Delay” Generic Drug Patent Settlements Are Not Shielded From Antitrust Liability

By Jonathan Lewis and Lee Simowitz on June 18, 2013 Posted in Antitrust Litigation, FTC Act, Healthcare, Patents

The Supreme Court has held that the antitrust laws may forbid patent settlements that delay the market entry of generic drugs in return for large payments from manufacturers of competing branded drugs. The Court’s ruling rewarded the dogged efforts of the Federal Trade Commission to expose those settlements—which the FTC labels “pay for delay”—to antitrust … Continue Reading

Update: Are the Regulators Coming for the Patent Trolls?

By Bill DeVinney on June 18, 2013 Posted in Patents

We recently wrote about a workshop held by the Department of Justice and the Federal Trade Commission to discuss perceived abuses by patent acquisition entities. The workshop included a panel discussion about whether the potential harm to innovation and competition caused by PAEs, particularly with regard to patent aggregators who may acquire market power, or … Continue Reading

The Joint DOJ and PTO Perspective on Standards-Essential Patents as Compared to that of the FTC

By Erin Murdock-Park on February 12, 2013 Posted in Patents

On January 8, the U.S. Department of Justice, Antitrust Division (“DOJ”) and the U.S. Patent & Trademark Office (“PTO”) (collectively, “the Agencies”) issued a joint policy statement regarding remedies for Standards-Essential Patents (“SEPs”) subject to voluntary fair, reasonable and non-discriminatory (“FRAND”) commitments. This joint statement came just days after the FTC’s statement in Google, which … Continue Reading

Recent FTC Developments Regarding Standard Essential Patents

By Erin Murdock-Park on January 15, 2013 Posted in FTC Act, Government Investigations, Patents

The FTC recently issued two decisions and proposed consent orders concerning Section 5 of the Federal Trade Commission Act (“FTCA”) and standard essential patents (“SEPs”). Not only do these decisions emphasize the Commission’s willingness, under certain circumstances, to bring stand-alone Section 5 claims against holders of SEPs, but they also attempt to provide a template … Continue Reading

Are the Regulators Coming after the Patent Trolls?

By Bill DeVinney on December 21, 2012 Posted in Government Investigations, Patents

FTC and DOJ discuss antitrust implications of patent acquisition entities The Federal Trade Commission and the Department of Justice recently held a workshop to discuss the effects of patent assertion entities (PAEs) on innovation and competition. A PAE, more commonly, and more colorfully, known as a patent troll, is an entity that buys patent rights … Continue Reading

Walker Process Claim Could Lead to Antitrust Class Action by Consumers

By Bill DeVinney on December 5, 2012 Posted in Antitrust Litigation, Class Action Litigation, Patents

The Federal Circuit Rules Direct Purchasers Can Bring Walker Process Claims Antitrust issues often arise in patent cases. A patent, after all, is a government-sanctioned monopoly on the patented invention or technology. But the Supreme Court held, in Walker Process Equipment, Inc., v. Food Machinery & Chemical Corp., that a patentee that obtained its patent … Continue Reading