The FTC has appealed to the Eighth Circuit  a decision to dismiss antitrust claims against Lundbeck, Inc. – a pharmaceutical company.  District of Minnesota Judge Joan N. Ericksen held that Lundbeck could retain two drugs that it had acquired becauyse .they  were not in the same product market. Although both drugs treated the same condition, the court found that different doctors preferred each drug and were unlikely to switch if Lundbeck raised its prices.

In its appeal, the FTC argued that Judge Ericksen failed to consider “marginal customers,” who would switch if prices were increased. The FTC further argued that there were numerous inconsistencies in the judge’s ruling, pointing out that Judge Ericksen acknowledged  that both drugs were equally effective at treating the same heart condition;  while at the same time, holding the drugs in separate product markets.

Update June 2011: In a divided decision, the Eighth Circuit on rehearing affirmed its decision upholding summary judgment for CR Bard on the ground that the plaintiff failed to allege sufficiently a relevant sub-market.

Update October 2010: The Eighth Circuit panel has agreed to re-hear the issue.

Update Aug. 2010: The Eighth Circuit has affirmed the decision dismissing the complaint on the ground that the plaintiff hospital suffered no antitrust injury because it was always free to purchase from other suppliers without giving up the ability to obtain discounts from the defendant.

Update Oct. 2009:The court dismissed the antitrust claims on the ground that the hospital plaintiff suffered no injury as a result of the defendant’s conduct and in any event the challenged conduct was not anticompetitive.

Update: November 2008: The Eighth Circuit has affirmed the trial court’s class certification decision.  Trial is set for April 2009.

St. Frances Medical Center’s case against urological catheter manufacturer CR Bard will proceed as a class action.  The case alleges that the defendant anticompetitively increased the price of catheter’s through volume requirements and the disparagement of competitors.  The specifics of the class definition and the claims that will go forward are still unsettled.

 The joint venture, CPTN Holdings LLC, was created by Microsoft Corp., Apple Inc., Oracle Corp. and EMC Corp. to buy 882 patents and patent applications from Novell as a key part of the company’s $2.2 billion sale to Attachmate Corp.  Antitrust regulators, however, concluded that the proposal could undermine the competitiveness of open source software operating systems such as those based on Novell’s Linux.

 As a result, Microsoft has agreed to sell all of the Novell patents it would have acquired through the joint venture back to Attachmate.  The company will, however, still receive a license to use all of those patents, as well as the patents sold to its fellow joint venture members and to any patents that Novell ends up keeping.

 EMC will also not acquire 33 Novell patents and applications that deal with virtualization software, according to the regulator.

 All of the patents covered by the deal will be sold subject to the Open Invention Network License, which is designed to share rights to patents used in the Linux system, and the joint venture will not be allowed to limit which patents are available under that license. Neither CPTN nor its owners will try to encourage Novell or Attachmate to change which patents they include in the OIN license.

 According to the DOJ, the patents are also being sold subject to the second version of the GNU General Public License.  While the regulator agreed to let the transaction go forward with the modifications, it said it would continue to investigate the distribution of Novell’s patents to the four technology companies.

 “The parties’ actions address the immediate competitive concerns resulting from the transfer of Novell’s patents,” said Sharis A. Pozen, deputy assistant attorney general for the Antitrust Division. “Although we recognize that the various changes to the agreement recently made by the parties are helpful, the department will continue to investigate the distribution of patents to ensure continued competition.”

 The joint venture — which will dissolve after three months and grant all four companies licenses to all the patents — also received antitrust clearance from Germany’s Federal Cartel Office on Wednesday.

 In ruling on the motion to dismiss, the court found that it insufficiently alleged that Prilosec had no acceptable substitute.  Judge Castel ruled the complaint’s few allegations about the characteristics of Prilosec OTC made no attempt to distinguish the drug from potential competitor products.  American Sales was not prohibited from amending the complaint.

 Two competitive tests are available to dominate cable providers.  Time Warner seeks to show that it meets the “competitive provider” test.  In order to meet the requirements of that means of showing effective competition, Time Warner needs AT&T subscriber numbers for seven areas where direct broadcast satellite providers do not reach the 15 percent threshold. The company is also seeking subscriber information from DirecTV Inc. and Dish Network Corp.  AT&T had argued that its customer information needed to be kept confidential given the competitive San Antonio market.

The company also claimed that Time Warner could instead demonstrate that it was subject to “local exchange carrier” effective competition, which bypasses the need for AT&T’s subscriber numbers.  The FCC stated that AT&T couldn’t badger Time Warner into claiming LEC effective competition because each company was entitled to choose which form of effective competition it asserted and that AT&T could still be required to turn over confidential information even if Time Warner decided to claim LEC effective competition.

The European Commission’s report contrasts sharply with a similar study released by the U.S. Federal Trade Commission in May, which found that the number of pay-for-delay deals monitored by that agency jumped by 60 percent in 2010 to 31 such deals.  Of those 31 pay-for-delay deals, 26 involved generics makers that were the first to file for FDA approval to market their own version of the branded drug.  The FTC views such deals as particularly dangerous to customers because they often block other generic drug companies from entering the market under the U.S. pharmaceutical patent regulatory scheme.  U.S. appellate courts have repeatedly upheld the settlements against antitrust attack when they do not foreclose other generics from attempting to enter the market.

The statements, a preliminary step in the EC’s proceeding, follow its January 2009 raiding of records at the facilities of Prysmian, Nexans, and other cable makers.  The U.S., Canada and Australia are also currently looking into cartel activity related to the high-voltage cables.

In 2010, Japan’s Fair Trade Commission fined three other Tokyo-based electric cable companies a total of over 630 million yen ($6.9 million) after finding they had engaged in bid-rigging and formed a cartel in an effort to land high-voltage electric cable supply orders in deals with Tokyo Electric Power Co. and others.

The court ruled that SARL Galerie Enrico Navarra had failed to support its claim by identifying any predatory or anti-competitive acts. Judge Jones also held that Enrico Navarra had failed to allege a relevant market that encompassed both the plates and the vases, finding that the vases were original works of art while the plates were replicas and noting the large disparity in price between the two items.

Enrico Navarra contended that Marlborough had prompted Chu to demand that it cease and desist producing the plates, and had caused the publication of advertising in France claiming that the plates were not genuine as well as other disparagement.

The court also concluded that Enrico Navarra had not identified any false statements made by Marlborough in its advertising to support the Lanham Act claim.