Brief Amici Curiae on Behalf of 70 Law, Economics, and Business Professors and the American Antitrust Institute in Support of Appellants PDF Download
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Author: Michael A. Carrier
Publisher:
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Languages : en
Pages : 45
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Book Description
In FTC v. Actavis, the Su ...
Author: Michael A. Carrier
Publisher:
ISBN:
Category :
Languages : en
Pages : 45
Get Book Here
Book Description
In FTC v. Actavis, the Su ...
Author: Michael A. Carrier
Publisher:
ISBN:
Category :
Languages : en
Pages : 41
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Book Description
In FTC v. Actavis, the Supreme Court held that a brand payment to a generic to delay entering the market could have "significant anticompetitive effects" and violate the antitrust laws. In a narrow, formalistic ruling, the court in In re Lamictal held that such payments were limited to cash. On behalf of 53 professors, the American Antitrust Institute, and Consumers Union, this Third Circuit amicus brief urges reversal.Exclusion payments today take myriad forms, with roughly half taking the form of “no-authorized-generic” agreements by which a brand agrees not to launch an authorized generic during the generic's 180-day exclusivity period. Because the launch of an authorized generic dramatically reduces the generic's profits, a brand's promise not to introduce one provides substantial value to the generic.No-authorized-generic agreements, which a brand enters into in exchange for a generic's agreement to delay entry into the brand's market, are simply a variation on a type of unlawful market-allocation agreement with which courts have long been familiar. The two parties make reciprocal agreements not to compete in the other's allocated portion of the market: the brand agrees not to launch an authorized generic that would compete against the generic, and the generic agrees to delay launching its product that would compete against the brand. In holding that only cash payments are subject to antitrust scrutiny under Actavis, the Lamictal court created a loophole large enough to accommodate an entire industry's worth of supracompetitive profits and missed dosages. Nor would scrutiny of agreements like the one in this case, which provides the generic with a type of consideration it could never have obtained by winning a patent case, have any effect on legitimate settlements that fall within the boundaries of patent litigation.Finally, the district court's analysis purported to apply Actavis but was closer to defying it in (1) using factors the Supreme Court invoked to require heightened scrutiny to instead justify reduced scrutiny; (2) misunderstanding the valuable no-authorized-generic period; (3) deeming procompetitive the elimination of risk that Actavis held is anticompetitive; and (4) divining, on its mere say-so, an absence of harmful “intent.”
Author: Michael A. Carrier
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Languages : en
Pages : 0
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This Supreme Court amicus brief, filed in Federal Trade Commission v. Watson, explains why exclusion-payment settlements, by which brand-name drug companies pay generic firms to delay entering the market, contravene the policies of patent law, antitrust law, and the Hatch-Waxman Act. It addresses five points. First, the settlements are not consistent with the Hatch-Waxman Act, Congress's framework for balancing patent and antitrust law in the pharmaceutical industry, which encouraged generics to challenge patents. Second, the settlements are anticompetitive, serving as a form of market division, which is the practical result when brands pay generics to drop challenges to weak patents and delay entering the market instead. Third, the mere fact of a patent cannot justify the payments. The Patent Office frequently issues invalid patents, and the patents at the heart of these settlements present concern, often covering not the drug's active ingredient but narrower aspects like the formulation or method of use that are less innovative and bear more potential for anticompetitive mischief. Patent policy encourages challenges to weak patents, and the procedural presumption of validity does not justify the settlements. Fourth, exclusion payments are not needed to settle cases in the public interest; history has shown that brands and generics can reach settlements without them. Fifth, the most appropriate antitrust framework employs a “quick look” rule-of-reason analysis that treats exclusion payments as presumptively unlawful. Such a framework recognizes the potentially severe anticompetitive effects of exclusion-payment settlements while permitting the settling parties to introduce possible procompetitive justifications, if any, for their agreement.
Author: Michael A. Carrier
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Languages : en
Pages : 0
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In FTC v. Actavis, the Supreme Court issued one of the most important antitrust rulings in the past generation, finding that settlements by which brand firms pay generics to delay entering the market could violate antitrust law. In March, the FTC applied Actavis for the first time, issuing a comprehensive ruling that offered a ringing bipartisan (5-0) condemnation of this behavior.Impax has appealed to the Fifth Circuit, seeking to overturn this ruling. This brief, filed on behalf of 82 professors of law, economics, business, and medicine, highlights Impax's four erroneous foundations, which seek to (1) overturn Actavis; (2) downplay Impax's concession that Endo made a reverse payment to delay entry; (3) ignore its role in delayed competition; and (4) remake antitrust law to immunize blatantly anticompetitive behavior.The brief requests that the Fifth Circuit affirm the FTC's opinion, which is supported by Actavis, real-world evidence, and longstanding antitrust principles.
Author: Ted M. Sichelman
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Languages : en
Pages : 0
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TC Heartland v. Kraft Foods, currently pending at the U.S Supreme Court, concerns where patent owners can file suit against corporate defendants. This amicus brief considers and analyzes the policy issues at stake in this case. It concludes that the current venue rule, which allows patent owners to sue corporate defendants in any district in which personal jurisdiction lies, should be retained. First, rigorous empirical analysis shows that limiting venue in the manner proposed by the Petitioner in this case would not have any meaningful effect on the existing concentration of patent cases among the lower courts. Instead, it would primarily shift patent cases from one jurisdiction that is relatively favorable to patent owners to two jurisdictions that are relatively less favorable. Second, Congress has effectively rejected concerns over “forum shopping” and “forum selling” in adopting a statutory venue rule that corporate defendants in nearly every type of federal civil case may be sued anywhere personal jurisdiction lies. This rule is sensible, because corporate defendants should be subject to suit where they have committed substantial harmful acts. There is no reliable, systematic evidence to show that “forum shopping” or “forum selling” in patent law is exceptional when compared to other areas of law so as to justify a special venue rule. Third, even if patent suits were exceptional, only Congress is in a position to craft a rule that meaningfully distributes cases among the various district courts and that is equitable to patent owners and accused infringers alike.
Author: Michael A. Carrier
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Category :
Languages : en
Pages : 23
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In re Wellbutrin XL Antit ...
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Languages : en
Pages : 0
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Author: Mark A. Lemley
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Category : Antitrust law
Languages : en
Pages : 26
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Languages : en
Pages : 0
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