Encouraging Consumer Suits

Grocer Meijer has reportedly filed an antitrust suit against drug maker Eisai for monopolization of the U.S. market for its billion-dollar GERD treatment Aciphex.  (S.D.N.Y.). Meijer charges that the patent was obtained fraudulently and that it is either invalid or unenforceable.  Meijer runs pharmacies in its stores, and the patent threat keeps generics out and prices high.

Although there is some precedent for these consumer-led cases, they tend to be few and far-between.  In the wake of several innovator-generic reverse-payment settlements, there appears to be some political will to find another market lever that encourages challenges to potentially unenforceable patents.  One suggestion is to boost-up the antitrust damages that could be collected by companies in Meijer’s situation.  Another suggestion is to facilitate cooperation and cost-sharing between the potential plaintiffs (e.g., pharmacies).

Comments

[Paul F. Morgan]

It will be interesting to see if this S.D. N.Y. judge applies 2d Cir.law rather than CAFC law, in view of this allegedly having been filed as an AT complaint rather than a patent infringement complaint, in view of the Sup. Ct. Vornado decision?

[DDG]

Appellate jurisdiction will, unfortunately, depend on the theories used. It is not quite so simple as antitrust case = regional circuit. It's possible to have "arising under" patent jurisdiction (there relevant issue here) if the plaintiff's theories necessarily implicate a substantial issue of patent law. The relevant SCt cases are Christianson v. Colt, Franchise Tax Board v. ??? and Smith v. Kansas City Trust.

If the claim is predicated on fraudulent procurement (as reported), it should arise under the patent laws and Federal Circuit law would control.