Antitrust Law Blog : March 2005

Important Pharmaceutical Declaratory Judgment Decision In Teva v. Pfizer

Posted on March 8, 2005 by Sheppard Mullin

In an effort to market its generic version of Pfizer's blockbuster drug Zoloft, Teva Pharmaceuticals USA, Inc. ("Teva") sued Pfizer Inc. ("Pfizer") challenging a patent on that drug. Specifically, Teva sued Pfizer for a declaratory judgment that its generic version of sertraline hydrochloride would not infringe Pfizer's patents on the drug Zoloft. Pfizer moved to dismiss for lack of subject matter jurisdiction, arguing that there was no actual controversy between the parties as required for such jurisdiction. The district court granted the motion to dismiss.

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European Court Raises Bar On The European Commission's Use Of Novel Theories In Merger Cases

Posted on March 8, 2005 by Sheppard Mullin

On February 15, 2005, the European Court of Justice ("ECJ") rejected an appeal by the European Commission against the judgment of the Court of First Instance ("CFI"), annulling the Commission's decision prohibiting the merger between Tetra Laval and Sidel.

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Northern District Of California Rules That A Relevant Market Cannot Be Defined Based Solely On Contractually Obligated Customers Of The Supplier Of A Non-Unique Product

Posted on March 8, 2005 by Sheppard Mullin

In Newcal Indus., Inc. v. IKON Office Solutions, Inc., 2004 U.S. Dist. LEXIS 26229 (N.D. Cal. December 23, 2004), plaintiff suppliers and service providers of copiers alleged that defendant IKON, also a supplier and service provider of copiers, fraudulently obtains amendments to its existing contracts with customers that extend the period of time that these customers are under contract with IKON. According to the plaintiffs, these fraudulently obtained contract extensions reduced the ability of plaintiffs to make deals with IKON customers to replace IKON copier equipment. Such a foreclosure of competition for the business of IKON customers, the plaintiffs contended, violated Sections 1 and 2 of the Sherman Act. IKON moved for dismissal for failure to state a claim, arguing that the plaintiffs failed to allege a legally sufficient market.

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African American Concert Promoters' Antitrust Conspiracy Claims Dismissed

Posted on March 8, 2005 by Sheppard Mullin

The Southern District of New York granted the motions of defendant booking agencies and concert promoters for summary judgment against Sherman Act Section 1 claims brought by plaintiff African American concert promoters alleging conspiracies to engage in group boycotts and market allocation. Rowe Entertainment, Inc. v. The William Morris Agency, Inc., 2005 U.S. Dist. LEXIS 75 (S.D.N.Y. Jan. 5, 2005).

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Italian Drug Maker's Monopolization Claim Against Holder Of Invalid Patent Moves Forward

Posted on March 8, 2005 by Sheppard Mullin

A federal trial has cleared the way for an Italian drug manufacturer - Chemi SpA - to sue drug maker GlaxoSmithKline ("GSK") for unlawful monopolization of the market for nabumetone, an anti-inflammatory drug. Chemi SpA v. GlaxoSmithKline, 2005 WL 300067 (E.D. Pa. February 8, 2005). The court rejected the defendant's arguments that Chemi lacked standing and that its claims were barred by the statute of limitations.

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Of Bats And Sunshine: Presumption Of Market Power In Patent Tying Case Alive But Rebuttable

Posted on March 8, 2005 by Sheppard Mullin

In January, the Court of Appeals for the Federal Circuit issued an opinion in Independent Ink Inc. v. Illinois Tool Works, Inc. ¹ Addressing the issue whether, in a Section 1 tying case, a rebuttable presumption arises from the possession of a patent over the tying product, the court answers in the affirmative. It concludes that it was bound to follow Supreme Court precedent in International Salt and Loew's, which have not been expressly overruled by Jefferson Parish, or more recent case law. Because International Salt and Loew's are not dispositive on the rebuttable nature of the presumption, however, the court looks to Supreme Court dicta, and concludes that on remand, the defendants may offer expert testimony or other credible economic evidence of cross-elasticity of demand, which, would negate the presumption.

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