Supreme Court Shows More Interest In Pharmaceutical-Patent Antitrust Case

FTC v. Schering-Plough (on Petition for Certiorari).

Odds are good that the Supreme Court will hear this high profile case involving antitrust issues surrounding the settlement of generic-pioneer patent cases.  On October 31, the Court asked the USDOJ to provide its stance on the case — a request that is often followed with a grant of certiorari.

It is a bit odd that the High Court asked for the Government’s amicus view on a case where the Government is a party.  Although the FTC is not directly under the control of the Administration, this has the appearance of giving antitrust regulators two bites at the apple. On the other hand, this may expose an interesting split between the FTC and DOJ.

In its petition for certiorari, the FTC presents two questions to the Court:

1. Whether an agreement between a pharmaceutical patent holder and a would-be generic competitor, in which the patent holder makes a substantial payment to the challenger for the purpose of delaying the challenger’s entry into the market, is an unreasonable restraint of trade.

2. Whether the court of appeals grossly misapplied the pertinent “substantial evidence” standard of review, by summarily rejecting the extensive factual findings of an expert federal agency regarding matters within its purview.

In its supporting brief, the FTC argues that agreements between competitors should not be per se lawful simply because they are within the “potential” reach of a patent claim.

Links:

• Patently-O Article I
• Patently-O Article II
• Patently-O Article III
• File Attachment: FTC Petition for Cert (182 KB)
• FTC petition for Rehearing at the 11th Circuit
• Schering 11th Circuit Decision.pdf
• Patent at issue, No. 4,863,743
• PubPat Amicus Brief to the 11th Circuit [pdf]