Southern District of Ohio Judge Michael Watson dismissed an antitrust claim brought be direct purchasers of the drug Plavix against the patent holder and its generic competitor alleging that they anticompetitively kept generic Plavix from the market. The patent holder and generic competitor had reached a settlement agreement that was rejected by the FTC. The parties thus continued patent litigation while an injunction barred the introduction of generic Plavix. The court held that defendant’s patent rights and the injunction were responsible for any restraint on competition, not the parties’ agreements. The court also dismissed the plaintiffs’ Walker Process claim that the patent had been obtained by fraud on the ground that they lacked standing to assert such a claim.
Drug Patent Reverse Payment Settlement Challenge Thrown Out
April 9, 2010 – 4:52 pm
Third Circuit Judge Joseph Greenaway, Jr., sitting by designation in the District of NJ granted summary judgment in favor of Schering-Plough in a case challenging a reverse payment settlement involving the drug K-Dur 20. The court held that since the settlements permit the introduction of competing drugs before the expiration of the patent, they could not violate the antitrust laws. Anticompetitive effects within the scope of the patent, the court held, are not subject to antitrust challenge.
Plywood Price Fixing Conspiracy Case to Proceed
March 22, 2010 – 11:19 am
Southern District of Mississippi Judge Louis Guirola, Jr., has refused to dismiss price fixing claims against major plywood producers Georgia-Pacific, Weyerhaeuser, and Louisiana Pacific with respect to purchases of (1) plywood made after November 2004 and (2) OSB. Claims based on earlier plywood purchases were deemed barred by the expiration of the statute of limitations. An earlier complaint had been dismissed with leave to amend. The amended complaint alleged that the defendants had manipulated prices by (1) closing or idling structural plants in a coordinated fashion to manipulate and (2) sharing sensitive pricing and marketing information. The court held that plaintiffs allegations of specific information exchanges and communications were sufficient to state a conspiracy claim.
Drug Retailers Allege Conspiracy to Block Generic Provigil
March 20, 2010 – 3:32 pm
Update March 2011: The court granted plaintiff Apotex’s motion for a declaratory judgment of non-infringement on one of the two patents-in-suit despite the defendant’s admisison of non-infringement. The court commented that a ruling on both patents-in-suit was required to trigger the 180 day exclusivity period under the Hatch-Waxman Act.
Update Spring 2010: E.D. PA Judge Mitchell Goldberg denied the defendant’s motion to dismiss a number of consolidated cases. The court held that the complaint plausibly alleges that the patent settlements extended beyond the permissible scope of the defendant’s patent rights.
In Walgreens Co. et al. v. Cephalon Inc. et al., Walgreens Co., Safeway Inc., The Kroger Co., American Sales Co. Inc., and Heb Grocery Company LP have filed suit against Cephalon Inc., Teva Pharmaceutical Industries Ltd., Barr Pharmaceuticals Inc., Mylan Pharmaceuticals Inc., and Ranbaxy Laboratories Ltd., accusing Cephalon of striking illegal deals with the other generic drug-maker defendants to keep copycat version of narcolepsy drug Provigil off the market, thereby conspiring to lock up the U.S. market for the drug. According to the Plaintiffs’ complaint, Cephalon agreed to cough up more than $200 million in exchange for agreements to keep the generic versions of Provigil off the market through April 2012. The so-called exclusion payments to the generic companies were disguised as licenses and/or supply agreements for Provigil’s active ingredient or product development agreements for unrelated products.
EC Inspects Wiring Harness Manufacturers
March 18, 2010 – 1:46 pm
On February 24, 2010, the European Commission conducted unannounced inspections at the premises of wiring harness companies for cars and other electrical distribution systems. The Commission is coordinating with other antitrust investigators.
Tax Preparation E-filing Agreement Exempt From Antitrust Scrutiny
March 18, 2010 – 1:21 pm
The Third Circuit held that an agreement among tax preparers, including Intuit, H&R Block Digital Tax Solutions, and the Free File Alliance with the IRS limiting the number of free e-filers to 50% of all taxpayers could not violate the antitrust laws because it constituted exempt petitioning of a government agency. The court rejected the plaintiffs’ claim that an exception applied because the agreement was insisted upon by the tax preparers and hindered the government. The court concluded that neither prerequisite for the exception applied.
Fines Imposed in Ice Cartel Case
March 18, 2010 – 1:06 pm
Southern District of Ohio Judge Herman Weber has imposed $9 million dollar fines on Home City Ice Co. and Artic Glacier International for conspiring to fix the price for prepackaged ice in the Detroit area. The fines constitute a significant reduction from the sentencing guidelines in response to the parties cooperation with the investigation. Reddy Ice Holdings is a third defendant. Home City has also agreed to settle civil claims brought in a multi-district litigation in an Eastern District of Michigan court for $13.5 million. The other defendants maintain that direct purchasers are not entitled to class treatment. Indirect purchaser claims also loom for all defenants.
Optometrist’s Antitrust Counterclaims Dismissed in a Contact Lens Trademark Infringement Suit
March 14, 2010 – 2:35 pm
In Ciba Vision Corp. v. De Spirito, Northern District of Georgia Judge J. Owen Forrester has dismissed an optometrist’s antitrust and other counterclaims in a trademark infringement suit brought by eye care company Ciba Vision Corp., holding that the defendant failed to sufficiently allege that Ciba engaged in any type of conspiracy in violation of the Sherman Act and that he did not allege any facts that Ciba had refused to deal for reasons other than its own legitimate business purposes. Judge Forrester also granted in part a motion to intervene filed by De Spirito’s company, Hoosier Eye Doctor Inc. as to the claims of trademark infringement, unfair competition, dilution and cybersquatting, while denying Hoosier the right to intervene in the now-dismissed counterclaims.
Microsoft – Yahoo Partnership is Given an Unrestricted Green Light
March 14, 2010 – 1:57 pm
Microsoft Corp. and Yahoo Inc. have received the green light from U.S. and European antitrust officials to move forward with their search advertisement partnership, which is intended to take on search engine leader Google Inc., without imposing any restrictions. The 10-year partnership will allow Microsoft to power Yahoo’s search engine, while Yahoo will become the exclusive worldwide relationship sales force for both companies’ premium search advertisers. Microsoft will keep 12 percent of the search revenue generated on Yahoo’s and its partners’ Web sites during the first five years of the deal and will pay 88 percent to Yahoo as a traffic acquisition cost. The companies hope to transition U.S. advertisers and publishers before the holiday season, and all global customers and partners by early 2012.