PubPat has filed two amicus briefs with the Supreme Court, with the question: to what extent can patents be used to destroy competition in the marketplace? You can get the briefs from PubPat's website.
Here's the amicus brief by PubPaat, AARP, and Consumers Union in Illinois Tool Works Inc., et al., v. Independent Ink, Inc. [PDF], asking the court to "determine how patents on one product that are used through tying arrangements to eliminate competition on another un-patented product are evaluated under antitrust law." The case involves the new trend in the pharmaceutical industry of tying two drugs together in the form of combination pills, which are part patent-protected drug and part non-exclusive drug, or tying a patented drug with services.
And here's PubPat's amicus brief in Federal Trade Commission v. Schering-Plough Corporation, et al., which involves the exclusionary power of patents in an antitrust case, specifically asking the court "to protect the public from anti-competitive settlements of patent infringement litigation whereby a potential competitor is offered a share of the monopoly profits that can be maintained if it stays off the market. . ." If I have understood it, they are asking the Supreme Court to outline just how evil folks can get with patents. Oh, wait. Let me rephrase that: to outline the parameters of anticompetitive activity with patents. Here's the press release.
PUBPAT FILES BRIEFS WITH SUPREME COURT IN CASES INVOLVING THE EXTENT TO WHICH PATENT HOLDERS ARE ALLOWED TO ELIMINATE COMPETITION
NEW YORK -- September 30, 2005 -- The Public Patent Foundation ("PUBPAT") filed briefs with the United States Supreme Court this week in two separate cases involving the use of patents to destroy competition. The first brief, filed Wednesday with coauthors AARP and Consumer's Union, involves the leveraging of a patent through tying arrangements to retrain competition in markets for goods not covered by the patent. The second brief, filed today in support of the Federal Trade Commission, addresses the collusive settlement of a patent infringement lawsuit whereby a potential competitor agrees not to enter the market in exchange for a payment from the patent holder.
“In two separate cases this term, the Supreme Court is being asked whether having a patent means you have free reign to destroy competition any way you see fit," said PUBPAT Executive Director, Dan Ravicher. "In one case you have a patent holder forcing people to buy something they don't want or need and in the other you have two pharmaceutical companies conspiring to share the profits from only one of them selling a drug instead of having to compete with one another. Such anti-competitive behavior disregards the fundamental American principle of a fair marketplace where consumers benefit from greater choice and lower prices."
The joint AARP, PUBPAT and Consumer's Union brief, filed in the case Illinois Tool Works Inc. v. Independent Ink, Inc., identified for the Court the growing trend in the pharmaceutical industry of so-called “combination” pills that combine a patent protected drug with another drug not covered by a patent that would otherwise be subject to full competition. By selling a patented drug only as part of a combination pill, pharmaceutical companies force patients to purchase their version of the unpatented drug, regardless of whether it is the safest or most effective version that is available to them. Today's brief, filed in Federal Trade Commission v. Schering-Plough Corp., highlighted for the court the fact that no patent gives its owner the right to exclude from the marketplace all products. As such, the lower court's assumption that a patent owner will be successful in asserting its patent against any given product was wrong and will, if left uncorrected, be harmful to America's competition-based economy.
More information about PUBPAT's briefs to the United States Supreme Court, including complete copies of the briefs, can be found at http://www.pubpat.org/Educating_and_Advocating.htm.
Jill Ratkevic, Bite Communications
Jill.Ratkevic at bitepr.com.
The Public Patent Foundation ("PUBPAT") is a not-for-profit legal services organization working to protect the public from the harms caused by the patent system, particularly the harms caused by wrongly issued patents and unsound patent policy. PUBPAT provides the general public and those specific persons or businesses otherwise deprived of access to the system governing patents, with representation, advocacy, and education. To be kept informed of PUBPAT News, subscribe to the PUBPAT News List by sending an email with "subscribe" in the subject line to firstname.lastname@example.org. To be removed from the PUBPAT News List, send an email with "unsubscribe" in the subject line to email@example.com.