Tag Archives: Patents

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

Photo of BakerHostetlerBy BakerHostetler on Posted in Antitrust Litigation, Healthcare, Patents
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

Photo of Carl HittingerPhoto of Tyson HerroldBy Carl Hittinger and Tyson Herrold on 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

What to Expect From FTC during Trump Administration: New Leader Illuminates

Photo of Carey BusenBy Carey Busen on Posted in FTC, Government Investigations
On Jan. 25, President Trump named Maureen Ohlhausen as the Federal Trade Commission’s acting chairwoman. A recent speech by Ohlhausen, who has served as a commissioner for the FTC since 2012, shed some light on the role the FTC may have under her leadership during the new administration. Ohlhausen briefly summarized a “few areas in … Continue Reading

Patent Defeats Antitrust in Latest Test at Supreme Court

Photo of Carl HittingerBy Carl Hittinger and Mitchell Oates on 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

‘Actavis’ Still Raising More Questions Than It Answers

Photo of Carl HittingerBy Carl Hittinger and Mitchell Oates on 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

‘Product-Hopping’ Can Be Snagged Under the Antitrust Laws

Photo of Carl HittingerPhoto of Gary LevinPhoto of Bill DeVinneyBy Carl Hittinger, Gary Levin and Bill DeVinney on Posted in Antitrust Litigation, Articles
The Drug Price Competition and Patent Term Restoration Act, more commonly known as the Hatch-Waxman Act, together with the patent laws, attempt to advance the competing goals of preserving pharmaceutical companies’ incentives to make the staggering investments necessary to bring new, improved drugs to market, as well as fostering lower prices through competition from generic … Continue Reading

The FTC’s Section 5 Authority Discussed in Article by BakerHostetler Antitrust Attorneys

Photo of BakerHostetlerBy BakerHostetler on Posted in Antitrust Litigation, Articles, Sherman Act 5
BakerHostetler antitrust attorneys Carl Hittinger and Jeffry Duffy authored the article, “FTC Section 5 in 2014: An Unexpected Attack, A New Frontier,” published in Law360 on December 22. The authors cover the FTC’s push to exercise its Section 5 authority in new areas; ever since Section 5 of the Federal Trade Commission Act was created … Continue Reading

FTC Aggressively Pressing ‘Antitrust Trumps IP’ Theme

Photo of Carl HittingerPhoto of Jeffry DuffyBy Carl Hittinger and Jeffry Duffy on 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 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

Photo of Bill DeVinneyBy Bill DeVinney on 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

Give It Back! Disgorgement – Another FTC Arrow against Reverse-Payment Settlements that Delay Generic Entry

By Jonathan Lewis on Posted in Antitrust Litigation, Healthcare, Sherman Act 2
If the uncertainty that the Supreme Court’s Actavis decision injected into the world of reverse-payment settlement litigation wasn’t enough to get your attention, then the FTC’s recent effort to obtain disgorgement from Cephalon in a reverse-payment case should do so. Cephalon is arguing that the federal district court should dismiss the FTC’s near six-year-old complaint … Continue Reading

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

Photo of Danyll FoixPhoto of Bill DeVinneyBy Danyll Foix and Bill DeVinney on 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

Update: Are the Regulators Coming for the Patent Trolls?

Photo of Bill DeVinneyBy Bill DeVinney on 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

No Standing for Illegal Drugs: Third Circuit Limits Antitrust Standing for Foreign Drug Manufacturers Absent FDA Approval

Photo of Bill DeVinneyBy Bill DeVinney on Posted in Antitrust Litigation, Sherman Act 1, Sherman Act 2
A Third Circuit panel recently ruled that a foreign drug manufacturer lacks antitrust standing when it could only sell its product in the United States through a distributor. In Ethypharm S.A. France v. Abbott Laboratories, Ethypharm, a French company, manufactured the drug fenofibrate and sold it under the brand name Antara.  Because of the substantial time … Continue Reading
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