Antitrust Law Blog

With its decision affirming dismissal for lack of subject matter jurisdiction in In re: Monosodium Glutamate Antitrust Litig., 2007 U.S. App. LEXIS 2772 (8th Cir. Feb. 8, 2007) ("MSG"), the Eighth Circuit delivered another setback to foreign plaintiffs intent on using U.S. antitrust laws to redress injuries from wholly foreign purchases allegedly subject to unified global price-fixing conspiracies. MSG is part of a growing body of law applying the Supreme Court's landmark decision in F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155 (2004) ("Empagran I"), which addressed the applicability of the Sherman Act to foreign purchaser claims under the Foreign Trade Antitrust Improvements Act of 1982 ("FTAIA").

In Hydril Co. v. Grant Prideco LP, Fed. Cir., No. 2006-1188, 1/25/07, the Federal Circuit held that a plaintiff may state a Sherman Act section 2 claim when it alleges that the holder of a fraudulently procured patent has directed threats of enforcement to the plaintiff's customers, as opposed to the plaintiff. Hydril sued Grant Prideco on three causes of action: (1) a "Walker-Process" section 2 claim alleging that Grant Prideco monopolized two product markets by enforcing a patent it obtained by fraud on the Patent and Trademark Office; (2) a patent infringement claim regarding a patent Hydril owned; and (3) breach of contract. The court reversed the district court's dismissal of the first two actions and vacated dismissal of the third.

In HDC Medical, Inc., v. Minntech Corporation, 2007 U.S. App. Lexis 1618, __ F.3d __ (8th Cir.), the Eighth Circuit held that HDC had failed to demonstrate that a price difference between two products justified a finding that they were separate products.  Central to the court's decision was HDC's failure to present evidence that single-use and multiple-use dialyzers constituted a separate market or that Minntech's actions were anticompetitive.

FTC Testifies Before House of Representatives on Patent Reform

• On February 15, 2007, Suzanne Michel, Deputy Assistant Director for Policy and Coordination in the FTC's Bureau of Competition testified before the House of Representatives' Subcommittee on Courts, the Internet, and Intellectual Property on the subject of patent reform. In this testimony, Ms. Michel noted that patent protection serves many public policies. Patent protection encourages firms to compete in the race to invent new products, eases the ability of innovators to attract funding and develop relationships needed to commercialize inventions, and facilitates the public disclosure of scientific and technical information that can stimulate further scientific progress. However, the testimony noted, competition is also a major spur for innovation and patents of "questionable quality i.e. patents that are too broad or of dubious validity – can harm competition and innovation