Cross-posted at Forbes.com’s “On the Docket” blog
Patent litigation has become a necessary, and expensive, precursor to the release of new generic drugs. Rather than incur millions in litigation costs, branded and generic companies often prefer to settle. Occasionally, the settlement terms include a payment from the generic to the branded company, along with an agreement that the generic drug won’t immediately enter the market.
The Federal Trade Commission (FTC) finds such agreements inherently anti-competitive, and has repeatedly, and so far unsuccessfully, filed court challenges to stop them. Courts have uniformly found that if the settlements do not extend the branded drug’s patent term, they are lawful. Finding no success in court, FTC has pressed Congress to impose a blanket ban, and bills to prohibit these settlements are pending in the House and Senate. Commissioners have testified in Congress promoting a ban, and have regularly written and spoken in public against patent settlements.
If an ongoing FTC investigation, and the troubling circumstances allegedly arising from it, is any indication, the Commission may be willing to go quite a bit further than filing suit or jaw-boning Congress to get its way on patent settlements. Continue reading
WLF Litigation Updates:
Decisions made in four cases in which WLF filed amicus briefs:
The Legal Pulse:
Guest Commentaries presented by:
Michael L. Kiklis, Akin Gump Strauss Hauer & Feld LLP*
In a highly anticipated opinion, the U.S. Supreme Court has decided the fate of business method patents, holding that business methods may indeed constitute patentable subject matter. Bilski v. Kappos, No. 08-964. In so doing, the Supreme Court rejected the Federal Circuit’s rigid approach for determining whether processes are patentable and, instead, relied on its existing case law and the long-held exclusion against patenting abstract ideas to resolve the case. Continue reading
The Honorable Dick Thornburgh, K&L Gates LLP*
*General Thornburgh, along with former Attorneys General of the United States, The Hon. William P. Barr and The Hon. Edwin Meese III, joined Washington Legal Foundation on an amicus brief supporting the petitioners in Free Enterprise Fund.
Today’s narrow decision in Free Enterprise Fund v. PCAOB is a refreshing re-affirmation of the principle that if the President is to “take Care that the Laws be faithfully executed,” he must have a reasonable level of authority over federal officials charged with executing those laws. The Court is to be applauded for so forcefully adhering to the principle without at the same time threatening any significant disruption in government operations.
At issue in the case was the fate of the Public Company Accounting Oversight Board (PCAOB), an entity created as part of a series of accounting reforms adopted in the Sarbanes-Oxley Act of 2002. The PCAOB was granted broad powers to regulate accounting firms that conduct audits of publicly traded companies. Congress went out of its way to ensure the PCAOB’s “independence” from Presidential control. Although the PCAOB reported to the Securities and Exchange Commission, the Act provided that the SEC could not remove members of the PCAOB at will, but only “for good cause shown.” Moreover, SEC Commissioners themselves could only be removed by the President for good cause. Continue reading
The Washington Examiner published an online op-ed piece by WLF’s Chairman and General Counsel, Dan Popeo, yesterday entitled Bigger Government Is Not Better, Just Bigger.
Whatever their philosophical stripe, Americans seem united in their disillusionment with government and its consistently dysfunctional performance. Lately, much of this frustration has focused on the Gulf of Mexico oil spill. This catastrophe offers the public a valuable lesson – bigger government isn’t necessarily better government.
While devotees of government activism have expressed shock over federal officials’ response to the spill, such incompetence and inefficiency is far from an aberration . . . Click HERE to read more.
Donald Falk & Archis Parasharami, Mayer Brown LLP
Some parties—usually employees, or consumers represented by class-action lawyers—refuse to arbitrate disputes in accordance with their agreements and instead force the other party to ask a court to compel arbitration. The resisting consumer or employee often argues that the arbitration agreement is unenforceable because it was imposed by a business with superior bargaining power and contains provisions that are so unfair as to be unconscionable. Although the vast majority of these arguments are considered by courts, some arbitration agreements call for an arbitrator to decide whether the arbitration agreement is valid and enforceable—including whether the agreement is unconscionable. In Rent-A-Center, West, Inc. v. Jackson, No. 09-497 (June 21, 2010), the Supreme Court clarified how and when such provisions may be enforced. Continue reading