Opening a new front in litigation over so-called reverse payment pharmaceutical patent infringement settlements, the California Supreme Court recently held that private parties can challenge these settlements under its state antitrust law, the Cartwright Act.[1] The court relied heavily on the U.S. Supreme Court’s decision interpreting federal antitrust law in F.T.C. v. Actavis, Inc.,[2] importing…

The federal district court in Boston has rejected a request from purchasers of AstraZeneca LP’s heartburn medication Nexium for a new trial to challenge a “reverse payment” or “pay-for-delay” agreement between AstraZeneca and Ranbaxy Pharmaceuticals to block the entry of a generic version of the drug. Judge Young’s lengthy opinion provides an interesting look at the trial…

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…

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…

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…

(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,…

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…

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…

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…

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…