Tag Archives: supreme court

The FTC To Agressively Pursue Pay-to-Delay Violations.

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 The Federal Trade Commission (FTC) has vowed to take aggressive action after the U.S. Supreme Court ruled favorably on agency’s right to challenge so-called pay-to-delay agreements. However, it is also calling on Congress to move forward with stronger laws prohibiting such settlements.

Pay-to-delay agreements are most common in the pharmaceutical industry where brand name drug makers agree to resolve patent infringement suits against generic drug makers by paying them large financial settlements to refrain from selling the competing drugs for a specified number of years. In Federal Trade Commission v. Actavis, Inc., the Supreme Court ruled that pay-to-delay agreements could violate anti-trust laws.

According to the Court, although the anticompetitive effects of the reverse settlement agreement might fall within the scope of the exclusionary potential of the patent, this does not immunize the agreement from antitrust attack. The justices further held that courts reviewing pay-to-delay agreements should proceed by applying the “rule of reason,” rather than under a “quick look” approach, which shifts the burden to the defendant to show empirical evidence of procompetitive effects.

Going forward, the FTC plans to use the precedent to aggressively attack settlements that its sees as anticompetitive, Chairwoman Edith Ramirez told a Senate subcommittee earlier this month. However, she also voiced support for proposed legislation that would formalize the agency’s argument in Actavis. The bill, co-sponsored by Senator Amy Klobuchar (D-Minn.) and Senator Chuck Grassley (R-Iowa), would make pay-to-delay agreements presumptively illegal rather than subject to the rule of reason.

“While the rule of reason standard is an appropriate test and we intend to apply that going forward, I do believe declaring them presumptively invalid would also further help us put a stop to these types of settlements,” Ramirez said.

How Can I Help?

If you, or someone you know, need any help with Intellectual Property issues, from filing a patent, trademark or copyright, or just need advice regarding how best to protect your inventions, ideas or your brand, please contact me for a free 30 minute consultation at nvantreeck@usip.com or call TOLL FREE at 1-855-UR IDEAS (1-855-874-3327) and ask for Norman.

– Ex astris, scientia –

I am and avid amateur astronomer and intellectual property attorney in Pasadena, California and I am a Rising Star as rated by Super Lawyers Magazine.  As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities. Connect with me on Google +

Norman

Guidance After The Myriad Decision.

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USPTO Provides Guidance in Response to Myriad Decision

The U.S. Supreme Court recently issued its decision in Association for Molecular Pathology v. Myriad Genetics, Inc., which clarifies what types of DNA claims are patent eligible. Only a few days later, the U.S. Patent and Trademark Office (USPTO) issued preliminary guidance to its patent examining corps.

Earlier this year, tThe Supreme Court held that a naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated, but cDNA is patent eligible because it is not naturally occurring.

As noted by the USPTO, “Myriad significantly changes the Office’s examination policy regarding nucleic acid-related technology.”In accordance with the Myriad decision, the USPTO advises it examiners:

As of today, naturally occurring nucleic acids are not patent eligible merely because they have been isolated. Examiners should now reject product claims drawn solely to naturally occurring nucleic acids or fragments thereof, whether isolated or not, as being ineligible subject matter under 35 U.S.C. § 101. Claims clearly limited to non-naturally-occurring nucleic acids, such as a cDNA or a nucleic acid in which the order of the naturally­occurring nucleotides has been altered (e.g., a man-made variant sequence), remain eligible.

The USPTO further added that it is closely reviewing the decision in Myriad and will issue more comprehensive guidance on patent subject matter eligibility determinations, including the role isolation plays in those determinations.

I will keep you informed of any new examination process and rule changes from the USPTO as they become relevant to you business.

How Can I Help?

If you, or someone you know, need any help with Intellectual Property issues, from filing a patent, trademark or copyright, or just need advice regarding how best to protect your inventions, ideas or your brand, please contact me for a free 30 minute consultation at nvantreeck@usip.com or call TOLL FREE at 1-855-UR IDEAS (1-855-874-3327) and ask for Norman.

– Ex astris, scientia –

I am and avid amateur astronomer and intellectual property attorney in Pasadena, California and I am a Rising Star as rated by Super Lawyers Magazine.  As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities. Connect with me on Google +

Norman