In our annual forecast of the year ahead for Canadian competition and foreign investment review law, the Davies Competition Law and Foreign Investment Group outlines the “Top 10″ key issues and trends to watch for this year.
1. A Green Light for Class Actions by Indirect Purchasers
The Supreme Court of Canada issued an important trilogy of decisions in October 2013 on competition class actions. Resolving a dispute between certain provincial courts of appeal, the Court held that indirect purchasers are entitled to assert claims for damages and restitution in class actions relying upon alleged competition law offences. (Indirect purchasers are entities that are one or more steps removed fr [...]
In anticipation of a House Energy and Commerce Committee hearing next week, entitled “The FTC at 100: Where Do We Go from Here,” David Balto offers this post, discussing the important role Section 5 of the Federal Trade Commission Act can play in the battle with patent trolls.
One hundred years ago Congress created the Federal Trade Commission to serve as this nation’s consumer protection cop. Recognizing the limits of the antitrust laws and the lack of consumer protection law Congress gave it broad powers under Section 5 of the FTC Act to attack “unfair trade practices” and “unfair methods of competition.” On December 3, the House Energy and Commerce Committee will hold an FTC oversight h [...]
It’s going to be a strict, nearly-per-se quick look rule, folks, in more or less every reverse-payment case likely to be brought from here on out. Dollars-to-donuts.
A few weeks have gone by, and quite a lot of folks are chewing over the entrails of Federal Trade Commission v. Actavis, Inc. The case may finally have ended the decades-long saga of the so-called “reverse payment” or “pay-for-delay” settlements, in which a branded incumbent drug maker pays a would-be generic entrant to stay out of its market and respect its patent. Unlike most lower courts to consider them, the five-Justice Actavis majority found these deals subject to Sherman Act challenge, under a standard that [...]
A “reverse payment” settlement agreement is not entitled to “near-automatic antitrust immunity” simply because its anticompetitive effects fall within the scope of the exclusionary potential of the patent, the U.S. Supreme Court ruled earlier this week in a five-to-three decision. Although such agreements, also known as “pay-for-delay” settlements, are not presumptively unlawful, the FTC should be permitted to challenge reverse-payment agreements between Solvay Pharmaceuticals and would-be generic competitors Watson Pharmaceuticals (now Actavis, Inc.) and Paddock Pharmaceuticals under a rule of reason analysis. The case is FTC v. Actavis, Inc., Dkt. No. 12-416.
Reverse paymen [...]
(Note: In December 2012, the Department of Justice and the Federal Trade Commission held a Hearing on the impact of patent assertion entities (PAEs) on innovation and competition and the implications for antitrust enforcement policy. The Agencies then issued a Request for Public Comments on the topic of the Hearing. In response, on April 5th, Richard Wolfram submitted the following comment to the DOJ and FTC, adapted and shortened here for Antitrust Connect. The full Public Comment – one of almost 70 public comments submitted to the Agencies — is available at http://www.ftc.gov/os/comments/pae/pae-0066.pdf or from the author.)
This comment is submitted in my personal capacity and d [...]
Commissioner Edith Ramirez became the new Chairwoman of the Federal Trade Commission on March 4. The White House announced the selection on February 28th.
Chairwoman Ramirez is an excellent choice for antitrust enforcement generally, but is truly an ideal Chair for the FTC as it prepares to face the next generation of anti-competitive practices stemming from patent misuse. She uniquely combines an IP litigation background with a commitment to aggressively enforce the spirit and the letter of the antitrust laws, and may prove a valuable friend in the movement for patent litigation reform.
Prior to joining the FTC, Chairwoman Ramirez was a partner with top intellectual property litigation fi [...]
We all remember the movie “Reversal of Fortune” that retells the real life story of Claus von Bulow, accused of attempting to kill his super-wealthy wife. When the movie begins life looks extremely bleak for Claus – he has been convicted of murder, the factual evidence seems compelling and he seems like a wholly unsavory character. Yet Alan Dershowitz arrives on the scene, and although he believes Claus is guilty, he finds new legal avenues, undermines the key evidence, and reverses the conviction.
Google’s opponents probably feel like Claus with the news that the decision in the ongoing Federal Trade Commission antitrust investigation has been delayed. The FTC seemed poised to close [...]
My U.S. colleagues Lee van Voorhis and Brian Rafkin wrote an excellent client alert on the Bosch case and I asked them to prepare the following short summary for the Kluwer readership:
On November 26, 2012, the FTC and Robert Bosch GmbH entered into a Consent Agreement that resolved the FTC’s inquiry into Bosch’s $1 billion acquisition of SPX Services. As part of the Consent Agreement the FTC required that Bosch agree to license on FRAND terms certain SPX patents. This is the first case where the FTC alleged an antitrust violation where a patent owner sought injunctions against willing licensees of FRAND-encumbered standard-essential patents. Moreover, the FTC obtained a consent agreemen [...]
One of the critical obstacles to our innovation economy are patent trolls or Patent Assertion Entities (“PAE”) which acquire patents simply to bring patent litigation and effectively tax innovation. PAEs exploit numerous problems in our legal system including the expense and uncertainty of patent litigation, the excessive granting of patents in the high-tech space, the ambiguity of abstraction surrounding the claims of many high-tech patents, and the anticompetitive pricing power that comes from aggregating patents in an industry where market definition is especially difficult. PAEs are costing the economy over $29 billion annually and creating barriers to the innovation that is critical [...]
Since the advent of antitrust enforcement in the United States through the Sherman Act in 1890, antitrust law and patent law have endured an uneasy relationship. Initial cases treated patents as superior to competition. Patentees once were “the owner of a monopoly recognized by the Constitution and by the statutes of Congress.” Gradually throughout the years our understanding of the intersection of intellectual property law and antitrust has evolved. We evolved to recognize that the scope of the patentee’s power is limited, and “as long as the inventors kept within their statutory exclusive rights” they could placate the Sherman Act. Regulatory agencies now recognize pate [...]