On April 28, Google published a policy statement on the need for specific patent reforms. The statement was published by Google’s General Counsel, Halimah DeLaine Prado, and titled, Reforming the patent system to support American innovation. The statement is a notable read given that it issued from one of the largest Big Tech companies. The statement identifies four concrete areas where patent reform is purportedly required. Behind its prescriptions lingers its agenda—namely, that patents should have no value at all.
Read MoreWhen does a pile of sand become a heap? When is a portfolio of patents too many patents? Can using too many patents to compel generics to take a later entry date turn into monopolistic conduct? These questions lurk the heart of the antitrust litigation brought by buyers of the blockbuster drug, Humira®, against its manufacturer, AbbVie ($ABBV). The case is currently pending within the Northern District of Illinois (In Re: Humira (Adalimumab) Antitrust Litigation, No. 19-cv-1873 (N.D. Ill.)). We previously blogged about related allegations before the case was filed when Boehringer Ingelheim raised them within its biosimilar litigation against AbbVie. On June 8, 2020, the Illinois federal court dismissed the antitrust action pursuant to AbbVie’s motion to dismiss. What are the takeaways from the case?
Read MoreIntel recently sued Fortress for antitrust violations based upon its alleged monopolistic aggregation of patents. Intel’s allegations mirror those by Capital One against Intellectual Ventures, which were recently rejected by the Federal Circuit. Over the past several years, any patent assertion has had to contend with certain expected defenses: Alice, IPRs, threats of Octane Fitness. Are antitrust counterclaims the next trend?
Read MoreThe Federal Circuit recently ruled on a case brought by Intellectual Ventures against Capital One ($COF). The case is Intellectual Ventures I LLC v. Capital One Financial Corp., 2018-1367 (Fed. Cir. Sep. 10, 2019). While the underlying case arose out of IV’s assertion of its patents against Capital One, the appeal focuses on Capital One’s counterclaim that IV was an unlawful monopolist by aggregating a series of patents and asserting them through litigation. Capital One lost the appeal. But the question remains – how much teeth do antitrust counterclaims have against aggregating and enforcing patents through litigation?
Read MoreWe previously blogged about Pfizer’s ($PFE) antitrust lawsuit against Johnson & Johnson ($JNJ) related to Janssen’s Remicade®. In short, Pfizer launched Inflectra® in 2016, which is a biosimilar to Janssen’s Remicade®. Yet, Inflectra® has struggled to eat into Janssen’s monopoly for Remicade®. Pfizer claims that Inflectra®’s poor sales are due to anticompetitive rebate schemes by Janssen. Specifically, Janssen forced hospitals and insurers to enter exclusive arrangements and bundled-rebated programs that discouraged them from stocking or covering Inflectra®. Pfizer sued Janssen in the Eastern District of Pennsylvania. Janssen moved to dismiss, but on August 10, the Court denied Janssen’s motion to dismiss. What are the takeaways?
Read MoreFDA’s Commissioner Scott Gottlieb said today that a “rigged” system between drug firms and insurers is stifling entry for less-expensive biosimilars. Gottlieb stated that certain payment arrangements “raise another, perhaps even more insidious barrier to biosimilars taking root in the U.S., and gaining appropriate market share.” Is J&J’s exclusionary contract scheme to discourage competition with Pfizer’s biosimilar for Remicade® a poster child for what Gottlieb is lamenting? Pfizer recently sued Janssen over that very question, and the federal court is scheduled to decide a motion answering that question very shortly.
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