Intellectual Property Law

We told you back in January about the possible involvement of the Supreme Court in the question of whether Schering-Plough?s authorized generics agreement violates unfair competition laws.  The Supreme Court took the somewhat unusual step of asking the Solicitor General?s office to weigh in on the Federal Trade Commission?s antitrust case against Schering-Plough, which argued that patent infringement settlements should not be automatically shielded from antitrust review where the allegedly infringing product is precluded from entering the market prior to expiration of the patent.  The 11th Circuit disagreed, and in considering the petition for certiorari, the Supreme Court sought the government?s opinion, even though the FTC was already in the case.  The government?s brief has now been filed, and perhaps not surprisingly, the Department of Justice takes a different view as to the enforcement of the antitrust laws. 

In the view of the United States, the [FTC's] petition for a writ of certiorari should be denied. The decision below does not conflict with any decisions of this Court or the courts of appeals, and the only important but unsettled issues of federal law that are raised by the petition are not well presented in this case.

Will the Supreme Court end up taking the case?  The  Solicitor General?s opinion is not dispositive, so stay tuned.

Today's Blogger:  Nan Joesten