by Mike Masnick

Filed Under:
antitrust, patents, pay for delay, pharmaceuticals

Supreme Court Says Patent Abuse Can Violate Antitrust Laws

from the a-good-step dept

We've been writing about the crazy world of pay for delay agreements by big pharmaceutical companies for years now. The short version of it is that big pharmaceutical companies pay off small generic pharma companies to prevent them from offering generic drugs. The actual process by which they do so is really convoluted, often involving the big company suing the small company first (yes, this is a case where the plaintiff is suing the defendant to get the defendant to accept money from the plaintiff). Courts have mostly said that this was a perfectly okay practice, while the FTC has been pushing back on it for years. The big pharma companies tried to argue that there was no antitrust issue, because (basically) its patents make any such drugs immune from antitrust laws (for those of you who still insist that patents are not monopolies, well, the claims by the patent-holding drug firms helps prove you wrong).

Thankfully, earlier this week, the Supreme Court ruled that the FTC can sue drug makers over pay-for-delay deals, allowing the FTC to argue that it violates antitrust law. The Court noted that just because you have patents, it doesn't mean it's a "get out of antitrust jail free" card:
For another thing, this Court’s precedents make clear that patent-related settlement agreements can sometimes violate the antitrust laws. In United States v. Singer Mfg. Co., 374 U. S. 174 (1963), for example, two sewing machine companies possessed competing patent claims; a third company sought a patent under circumstances where doing so might lead to the disclosure of information that would invalidate the other two firms’ patents. All three firms settled their patent-related disagreements while assigning the broadest claims to the firm best able to enforce the patent against yet other potential competitors. Id., at 190–192. The Court did not examine whether, on the assumption that all three patents were valid, patent law would have allowed the patents’ holders to do the same. Rather, emphasizing that the Sherman Act “imposes strict limitations on the concerted activities in which patent owners may lawfully engage,” id., at 197, it held that the agreements, although settling patent disputes, violated the antitrust laws. Id., at 195, 197. And that, in important part, was because “the public interest in granting patent monopolies” exists only to the extent that “the public is given a novel and useful invention” in “consideration for its grant.” Id., at 199 (White, J., concurring). See also United States v. New Wrinkle, Inc., 342 U. S. 371, 378 (1952) (applying antitrust scrutiny to patent settlement); Standard Oil Co. (Indiana) v. United States, 283 U. S. 163 (1931) (same).

Similarly, both within the settlement context and without, the Court has struck down overly restrictive patent licensing agreements—irrespective of whether those agreements produced supra-patent-permitted revenues. We concede that in United States v. General Elec. Co., 272 U. S. 476, 489 (1926), the Court permitted a single patentee to grant to a single licensee a license containing a minimum resale price requirement. But in Line Material, supra, at 308, 310–311, the Court held that the antitrust laws forbid a group of patentees, each owning one or more patents, to cross-license each other, and, in doing so, to insist that each licensee maintain retail prices set collectively by the patent holders. The Court was willing to presume that the single-patentee practice approved in General Electric was a “reasonable restraint” that “accords with the patent monopoly granted by the patent law,” 333 U. S., at 312, but declined to extend that conclusion to multiple-patentee agreements: “As the Sherman Act prohibits agreements to fix prices, any arrangement between patentees runs afoul of that prohibition and is outside the patent monopoly.” Ibid. In New Wrinkle, 342 U. S., at 378, the Court held roughly the same, this time in respect to a similar arrangement in settlement of a litigation between two patentees, each of which contended that its own patent gave it the exclusive right to control produc­ tion. That one or the other company (we may presume) was right about its patent did not lead the Court to confer antitrust immunity. Far from it, the agreement was found to violate the Sherman Act.
While this ruling basically just says the FTC can sue over antitrust, and doesn't rule directly on whether or not these kinds of agreements definitely do violate antitrust law, it's a good start -- and also opens up the very real possibility that the FTC (who has been expressing concern about patent trolls for some time) can now go after many different kinds of abuse of patents on antitrust grounds. While some had viewed this as a narrow case really just concerning these wacky pay-for-delay deals, it'll be much more interesting to see if the FTC now starts getting much more aggressive in using its antitrust powers against all kinds of patent shenanigans.

Reader Comments (rss)

(Flattened / Threaded)

  1. This comment has been flagged by the community. Click here to show it
    out_of_the_blue, Jun 19th, 2013 @ 3:39pm

    What's this? Mike FOR anti-trust? ... What about Google?

    Oh, different then! This just happens to fit into his patent template; I'm sure he's against anti-trust elsewhere. -- The real problem most areas is grifters seeking unearned income, a fundamental problem that requires steeper taxes on the unearned, NOT susceptible to tweaking at the margins.

    reply to this | link to this | view in thread ]

  2. icon
    Nigel (profile), Jun 19th, 2013 @ 3:46pm

    Re: What's this? Mike FOR anti-trust? ... What about Google?

    Wrong again and refuted repeatedly.

    Do let us know when your balls drop though. As that is as about a relevant and on point as the silliness your mouth expels without your brains consent.


    reply to this | link to this | view in thread ]

  3. icon
    James Burkhardt (profile), Jun 19th, 2013 @ 3:59pm

    Re: What's this? Mike FOR anti-trust? ... What about Google?

    What does google do that is anti-trust? It succeeds because it does search better. One of its competitor has to lie about its search results in a comparison test (Hint: google and Bing results on Bingiton are not Google or Bing results, and yes i have the screenshots) to get customers. Better yet search maps on Google and Bing. see what the top result is in both cases.

    Google does maps better then Yahoo and Mapquest and Apple. Google does Email Better then Hotmail or Yahoo. Thats why google tops searches in other search engines.

    So where is google being anti-competitive?

    reply to this | link to this | view in thread ]

  4. icon
    The Mighty Buzzard (profile), Jun 19th, 2013 @ 6:45pm

    Re: Re: What's this? Mike FOR anti-trust? ... What about Google?

    Ignore him, it's just his ass-backwards way of calling for an anti-dog-eat-dog act.

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, Jun 19th, 2013 @ 6:54pm

    Good post: Updates us on a really important issue. Pay for Delay is a criminal exploitation of a broken patent system.

    When it comes to Pharma Patents, the whole system inflates costs for Healthcare tremendously, and as a side effect, kills those who cannot afford the outrageous costs.

    It's a shame that the first post is more inane drivel from OOTB, followed by good meaning people trying to pacify and pet the fuzzy troll.

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, Jun 19th, 2013 @ 6:56pm

    Re: What's this? Mike FOR anti-trust? ... What about Google?

    Anti trust on fucking google? the same company that made a moblie OS it doesn't have a copyright monopoly on despite the fact it could have kept everything non-kernel space closed?

    You know copyright, one of the few kinds of monopoly you're not only allowed to have but that you claim is a moral right?

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, Jun 19th, 2013 @ 8:27pm

    the public interest in granting patent monopolies exists only to the extent that the public is given a novel and useful invention

    There is a test that could sink many a patent ship...

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, Jun 20th, 2013 @ 6:54am

    I can see it now ... MLB and HMOs become patent trolls due to their anti trust exemptions.

    reply to this | link to this | view in thread ]

  9. identicon
    Get it off my leg!, Jun 20th, 2013 @ 7:46am


    Don't sweat the petty things, and don't pet the sweaty things.

    reply to this | link to this | view in thread ]

  10. identicon
    Somewhat Reticent, Jun 20th, 2013 @ 2:21pm

    A monopoly is okay, but not a cartel

    And the court is happy to see the FTC sue (generate more caseload), but won't comment on whether they'll ever win.

    reply to this | link to this | view in thread ]

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