Patent Law

Seeking Reversal

By Gary Odom and Jordan Kuhn

"A patent by its very nature is anticompetitive." So the CAFC remarked last October in allowing reverse payment by Bayer to generic drug makers, so that Bayer could keep its patented monopoly over antibacterial Cipro^® for a bit longer. Stanford law professor Mark Lemley has penned a petition to the Supreme Court, to lay the burden of overturning reverse payments before the august body, this nation's numero uno woolly bully. Lemley thinks the CAFC ruling "contains fundamental errors of economic reasoning and would shield many anti-competitive agreements from the reach of antitrust law, causing great harm to competition."

The question begged:

Whether an agreement by a patent owner to pay a potential competitor not to enter the market is illegal per se....

Lemley joins himself with the self-interest group The Academic Amici, and their fellow travelers: the American Antitrust Institute, the rabidly anti-patent Public Patent Foundation, and the drug-swilling geezerhood AARP, who fight for cheap drugs at any cost, however oxymoronic. As Lemley staked it out, "AARP has a long history of advocating for access to affordable health care and for controlling costs without compromising quality." Essentially, an old folks socialist society. Don't get me wrong - that's an approbation.

This is rich. Lemley claims the "Amici have no stake in the outcome of this case." Bragging rights means nothing to the boy. Right.

Lemley notes that the issue has received uneven treatment in the appeal circuits. Lemley summarizes that the Sixth Circuit treats reverse payments as illegal, while the Second and Federal Circuits consider them legal, with the Eleventh Circuit applying the antitrust rule of reason.

Lemley:

The Federal Circuit does not merely protect established rights of patent holders. Rather, by letting patent owners buy immunity from competition with "fatally weak" patents, the Federal Circuit has greatly expanded the patent holders' rights, turning a rebuttable (and often-rebutted) presumption into an irrebuttable one.

The petition was filed last Friday. According to the docket, the parties have until late May to respond.

Full post as published by The Patent Prospector on April 28, 2009 (boomark / email).