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Languages : en
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Author: Michael A. Carrier
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Languages : en
Pages : 16
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In Mylan v. Warner Chilcott, a Third Circuit panel offered a highly questionable decision on “product hopping,” by which a pharmaceutical company switches from one version of a drug to another.Mylan offered a simple and compelling anticompetitive story: (1) defendants were the exclusive sellers of an unpatented branded drug; (2) when generics appeared on the horizon, they introduced a minor modification of the drug and removed the older version from the market to delay generic entry (and did this several times); (3) when generic entry finally occurred against a version of the drug that defendants could not hop away from, prices fell sharply; and (4) had the product hops not occurred, Mylan (and other generics) would have entered much sooner, prices would have fallen much sooner, and consumers (and third-party payors) would have obtained the benefits of the lower prices.Despite this significant evidence of anticompetitive conduct, the court granted summary judgment for defendants, issuing erroneous rulings on monopoly power and (in dicta) exclusionary conduct. The panel misapplied standard monopoly-power law, misconstrued Third Circuit law in requiring complete foreclosure rather than foreclosure from the most cost-effective means of distribution; failed to pay sufficient attention to the regulatory regime; and offered a decision that conflicted with the other appellate decision on product hopping, the 2nd Circuit's “Namenda” decision.This brief seeks a rehearing en banc in the Third Circuit or, at a minimum, the panel's withdrawal of the exclusionary-conduct section of the opinion.
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Author: Michael A. Carrier
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Languages : en
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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.
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Languages : en
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Author: Joshua P. Davis
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Languages : en
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In Comcast Corp. v. Behrend, the United States Supreme Court will decide at least one of two issues regarding class certification: (1) whether plaintiffs seeking to certify a class must provide evidence that is admissible, including only expert evidence that can survive a Daubert challenge; and (2) whether plaintiffs must show that a case is susceptible to awarding damages on a class-wide basis for a court to certify a class under Rule 23(b)(3). The first issue is about how plaintiffs must make their showing -- using admissible evidence? -- and the latter about what showing plaintiffs must make. This amicus brief filed on behalf of the American Antitrust Institute and the American Independent Business Alliance attempts to guide the Supreme Court so that it does not inadvertently disrupt settled doctrine about the second issue: what showing plaintiffs must make to have a court certify a class.
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Languages : en
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Category : Antitrust law
Languages : en
Pages : 84
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The question presented is whether an agreement by a patent owner to pay a potential competitor not to enter the market is illegal per se, as the Sixth Circuit has held, is legal per se, as the Second and Federal Circuits have held, or should be judged under the antitrust rule of reason, as the Eleventh Circuit has held.
Author: Michael A. Carrier
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Category : Antitrust law
Languages : en
Pages : 47
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