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Patent Litigation Weekly: Of IV, False-Marking, And Fighting Pay-For-Delay

Publication Date: 
June 21, 2010
Source: 
Corporate Counsel
Author: 
Joe Mullin

Professor Mark Lemley is noted in this article on patent litigation for authoring an amici curiae brief filed on behalf of 86 law professors seeking the en banc review of the panel decision in the Ciprofloxacin Hydrochloride antitrust litigation. Joe Mullin of Law.com filed this story:

This week: Intellectual Ventures gets a major financial infusion for its single actual, non patent-enforcing business; a Federal Circuit decision says false marking plaintiffs who sue over expired patents still have viable cases, but will be hard pressed to win; and President Obama's Department of Justice makes its distaste for drug reverse-payment settlements clear.

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Obama DOJ Hits Hard On Reverse-Payment Issue

So-called reverse-payment settlements are deals that resolve patent suits between branded and generic pharmaceutical companies by giving the generic company something of value—cash, for instance, or a lucrative licensing deal—to drop a patent challenge. The Federal Trade Commission, led by chairman Jon Leibowitz, has long opposed these settlements—known by some as "pay-for-delay" deals—as "sweetheart" arrangements that violate antitrust laws and rob consumers of their right to inexpensive drugs once patents expire or are busted as invalid.

During the Bush administration, the Department of Justice took a view of pay-for-delay deals that opposed the FTC's. That made the commission's push to challenge the settlements in court difficult. Since the DOJ's antitrust unit was taken over by Christine Varney, though, the two agencies seem to be on the same page on this issue. While an amicus brief [PDF] filed by the DOJ in an earlier federal court challenge made this new spirit of cooperation plain, the most recent brief [PDF] makes it even clearer.

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For those interested in this subject, another valuable piece of reading material is the short and interesting brief filed on behalf of 86 law professors, which, like the DOJ brief, also calls for the Second Circuit to rehear the Cipro case en banc. The brief, authored by Stanford law professor and Durie Tangri litigator Mark Lemley, makes the point—which can't seem to be made enough—that the U.S. Patent and Trademark Office doesn't always get it right when issuing patents and that an issued patent represents only an initial judgment about an invention (or "invention," as the case may be.) Almost half of patents litigated to judgment are ultimately held to be invalid, the law professors note.