In re: Ciprofloxacin Hydrochloride Antitrust Litigation

Plaintiffs appeal from a judgment of the United States District Court for the Eastern District of New York (Trager, J.) granting summary judgment for defendants, manufacturers of the antibiotic ciprofloxacin hydrochloride (“Cipro”) or generic bioequivalents of Cipro. Plaintiffs argue that defendants violated Section 1 of the Sherman Act when they settled their dispute concerning the validity of Bayer’s Cipro patent by agreeing to a reverse exclusionary payment settlement. Bayer agreed to pay the generic challengers, and in exchange the generic firms conceded the validity of the Cipro patent.

After the district court entered judgment below, a panel of this Court held that reverse payment settlements of patent lawsuits do not violate antitrust laws. See Joblove v. Barr Labs., Inc., (In re Tamoxifen Citrate Antitrust Litig.), 466 F.3d 187, 208-12 (2d Cir. 2005). Because Tamoxifen is dispositive of plaintiffs’ claims, we AFFIRM. However, because of the “exceptional importance” of the antitrust implications of reverse exclusionary payment settlements of patent infringement suits, we invite plaintiffs-appellants to petition for rehearing in banc. See Fed. R. App. P. 35(a)(2).

Download In Re Ciprofloxacin Hydrochloride Antitrust Litigation

Please visit Gehrke & Associates, SC to learn more about how to enhance and defend your intellectual property.  Thank you.

Allied Orthopedic Apps. Inc. v. Tyco Health Care Group LP

Plaintiffs in this antitrust suit are a group of hospitals and other health care providers that purchased pulse oximetry sensors from Tyco Healthcare Group LP after November 2003. They allege that they overpaid for the sensors because Tyco used two kinds of marketing agreements to foreclose competition from generic sensor manufacturers in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. They also allege that by introducing OxiMax, a patented pulse oximetry system that is incompatible with generic sensors, Tyco unlawfully maintained its monopoly over the sensor market in violation of Section 2 of the Sherman Act, 15 U.S.C. § 2.

The district court denied Plaintiffs’ motion for class certification and later granted Tyco’s motion for summary judgment on the Section 1 and 2 claims. We agree with the district court that Tyco’s agreements do not violate Section 1; there is no evidence that they foreclosed competition in a substantial share of the sensor market. We also agree that there is no Section 2 violation; the undisputed evidence shows that the patented OxiMax design is an improvement over the previous design. Innovation does not violate the antitrust laws on its own, and there is no evidence that Tyco used its monopoly power to force customers to adopt its new product. Accordingly, we affirm the district court’s judgment on the merits and have no need to reach the class certification issue.

Download Allied Orthopedic Apps. Inc. v. Tyco Health Care Group LP

Please visit Gehrke & Associates, SC to learn more about how to enhance and defend your intellectual property.  Thank you.

Kaiser Found. Health Plan Inc. v. Abbott Labs., Inc.

Plaintiff-Appellant Kaiser Foundation Health Plan, Inc. (“Kaiser”) sued Defendants-Appellees Abbott Laboratories (“Abbott”) and Geneva Pharmaceuticals (“Geneva”) for violations of the Sherman Antitrust Act and analogous provisions of California law. Kaiser brought a claim under Section One of the Sherman Act against both Abbott and Geneva, and a claim under Section Two against only Abbott. A multidistrict litigation federal district court in Florida allowed Kaiser’s Section One claim to go to trial. The suit was transferred to a federal district court in California for trial on that claim. The jury returned a verdict against Kaiser. The district court in Florida granted summary judgment against Kaiser on its Section Two claim.

We affirm the judgment entered on the jury’s verdict on Kaiser’s Section One claim. We reverse summary judgment on Kaiser’s Section Two claim and remand for further proceedings.

Download

Please visit Gehrke & Associates, SC to learn more about how to enhance and defend your intellectual property.  Thank you.

In Re Ciprofloxacin Hydrochloride Antitrust Litigation

This case under the Hatch-Waxman Act presents the issue of whether a settlement agreement between a patent holder and a generic manufacturer violates the antitrust laws. The agreements here involve a reverse payment from the patent holder to the generic manufacturer, but do not implicate the 180-day exclusivity period. Indirect purchasers of Cipro and several advocacy groups (“appellants”) appeal the grant of summary judgment of their federal antitrust claims and dismissal of their state antitrust claims against the patent holders and brand-name manufacturers, Bayer AG and Bayer Corp. (collectively “Bayer”), and the generic manufacturers, Barr Labs., Inc. (“Barr”), Hoechst Marion Roussel, Inc. (“HMR”), The Rugby Group, Inc. (“Rugby”), and Watson Pharmaceuticals, Inc. (“Watson”) (collectively “generic defendants”). The United States District Court for the Eastern District of New York granted Bayer’s and the generic defendants’ motion for summary judgment, holding that any anti-competitive effects caused by the settlement agreements between Bayer and the generic defendants were within the exclusionary zone of the patent, and thus could not be redressed by federal antitrust law. In re Ciprofloxacin Hydrochloride Antitrust Litigation, 363 F. Supp. 2d 514 (E.D.N.Y. 2005) (“Cipro II”). The court further granted Bayer’s motion to dismiss the state antitrust claims. For the reasons set forth below, we affirm.

Download

Please visit Gehrke & Associates, SC to learn more about how to enhance and defend your intellectual property.  Thank you.

Am. Needle, Inc. v. Nat'l Football League

American Needle Inc. sued the National Football League (NFL), its member football teams, and NFL Properties LLC (to whom we will collectively refer as “the NFL defendants”), along with Reebok International Ltd. (“Reebok”), alleging that the teams’ exclusive licensing agreement with Reebok violated the Sherman Antitrust Act. See 15 U.S.C. §§ 1-2. The district court granted summary judgment to the NFL defendants.

We affirm.

Download

Please visit Gehrke & Associates, SC to learn more about how to enhance and defend your intellectual property.  Thank you.

Meijer, Inc. v. Biovail Corp.

The plaintiff-appellants in these four antitrust class actions are wholesale purchasers of Tiazac (extended-release Diltiazem Hydrochloride, hereinafter Diltiazem HCl), a controlled-release drug for hypertension and angina. They alleged that Biovail Corporation, which manufactures Tiazac, misused a patent to keep off the market a generic equivalent manufactured by Andrx Pharmaceuticals, Inc., in violation of federal and state antitrust laws. The district court entered summary judgment for Biovail, which we affirm.

Download

Please visit Gehrke & Associates, SC to learn more about how to enhance and defend your intellectual property.  Thank you.

Broadcom Corp. v. Qualcomm Inc.

This appeal presents important questions regarding whether a patent holder’s deceptive conduct before a private standards-determining organization may be condemned under antitrust laws and, if so, what facts must be pled to survive a motion to dismiss. Broadcom Corporation (“Broadcom”) alleged that Qualcomm Inc. (“Qualcomm”), by its intentional deception of private standards-determining organizations and its predatory acquisition of a potential rival, has monopolized certain markets for cellular telephone technology and components, primarily in violation of Sections 1 and 2 of the Sherman Act and Sections 3 and 7 of the Clayton Act. The District Court dismissed the Complaint, and Broadcom appeals. For the reasons that follow, we conclude that Broadcom has stated claims for monopolization and attempted monopolization under § 2 of the Sherman Act – Claims 1 and 2 of the Complaint. We also conclude, however, that Broadcom lacks standing to assert a claim for unlawful monopoly maintenance in
a market in which it neither competes nor seeks to compete – Claim 7 – and that it has failed to allege an antitrust injury sufficient to state a claim under § 7 of the Clayton Act – Claim 8. We will, accordingly, affirm in part, reverse in part, and will order the reinstatement of Broadcom’s state and common-law
claims.

Download the decision.

Please visit Gehrke & Associates, SC to learn more about how to enhance and defend your intellectual property.  Thank you.

Dippin' Dots, Inc. v. Mosey

This is a patent infringement and antitrust case dealing with a unique ice cream product. Plaintiffs Dippin’ Dots, Inc. and Curt D. Jones (collectively “DDI”) appeal from the district court’s claim construction and summary judgment of noninfringement of U.S. Patent No. 5,126,156 (“the ’156 patent”) and from the judgment following jury trial that all claims of that patent are obvious, that the patent is unenforceable due to inequitable conduct during prosecution, and that DDI violated the antitrust laws by asserting a patent that had been procured through fraud on the Patent Office. We affirm the judgments of noninfringement, obviousness, and unenforceability, but reverse as to the antitrust counterclaim.

Download the decision.

Please visit Gehrke & Associates, SC to learn more about how to enhance and defend your intellectual property.  Thank you.

Hydril Co. LP v. Grant Prideco LP

This appeal challenges the district court’s dismissal, under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a valid claim for relief, of a complaint alleging that the defendant (1) monopolized two product markets by enforcing a patent that had been obtained by fraud on the Patent and Trademark Office, (2) infringed a different patent that the appellant owns, and (3) breached a contract between the parties. We reverse the dismissal of the antitrust and patent claims, vacate the dismissal of the state law claim, and remand for further proceedings.

Download the decision.

Please visit Gehrke & Associates, SC to learn more about how to enhance and defend your intellectual property.  Thank you.

Apple Faces Antitrust, New Patent Case

By Erika Morphy
www.MacNewsWorld.com
Part of the ECT News Network
01/03/07 8:19 AM PT

Tucker v. Apple Computer alleges that Apple is violating antitrust law because content purchased from iTunes can only be played on the Apple-manufactured iPod and no other device. In the PhatRat Technology v. Apple Computer case, PhatRat alleges that the Nike + iPod product offering -- which uses a sensor to connect Nike shoes to the iPod -- infringes on several of its own patents.

As 2007 begins, Apple (Nasdaq: AAPL)  executives might wish they could make a resolution to spend less time in the courtroom. However, like many New Year's resolutions, that is unlikely to occur.

The company has been served with 11 suits in the past six months, according to a recent Securities and Exchange Commission filing. Several of the suits relate to its backdating of options; others, such as Tucker v. Apple Computer and PhatRat Technology v. Apple Computer, deal with antitrust and patent issues, respectively.

Full story.

Please visit Gehrke & Associates, SC to learn more about how to enhance and defend your intellectual property.  Thank you.