Will Allergan Suffer Antitrust Damages for its Bold Enforcement Strategies?

There are now about a dozen class-action antitrust lawsuits pending against Allergan that allege “a multi-pronged effort to block generic versions of Restasis from coming to market.”  Alleged improper actions include:
  1. “Falsely claiming [to the PTO] that clinical data showed unexpected effectiveness and surprising test results of its purported inventions.”
  2. Wrongfully listing “second wave” Restasis patents in the Orange Book.
  3. Filing sham infringement suits against generic drug makers.
  4. Attempting to enforce patents where invalidity is clear.  “But simply by filing these suits, Allergan guaranteed that its competitors would not get to market for two-and-a-half years.”
  5. Sham transfer of rights to the Mohawk tribe to avoid challenges to the patent validity.
  6. Filing multiple petitions to delay approval of generic versions.

The outcome of the antitrust lawsuits will at least partially depend upon the pending PTAB IPR proceedings.  The patents at issue were invalidated following a bench trial in the E.D.Tex. with Federal Circuit Judge Bryson sitting by designation as the trial court. Allergan has appealed that order.

 

40 thoughts on “Will Allergan Suffer Antitrust Damages for its Bold Enforcement Strategies?

  1. 7

    Anybody handicapping when we might get a decision in Oil States?

    1. 7.1

      I have no more info than anyone else around here, but I am betting on late April, early May.

    2. 7.2

      March 5?

  2. 6

    This is totally off-topic of Allergan, but I do not see a thread yet devoted to today’s Google v. Network-1 opinion. It struck me that—if Prof. Crouch is correct and the statute does not permit Rule 36 affirmances from PTO proceedings—then this opinion from today is really the ideal model of what a short, non-precedential opinion should be. Only one page long, but with a premise and conclusion that can be logically followed to understand (if not be entirely convinced by) the reasoning that gives rise to the affirmance.

    1. 6.1

      Greg,

      Would your “logically followed” include the notion that such (evident) Beauregard claims are a proper claim format, even under a Covered Business Method challenge?

  3. 5

    Sen. Lamar Alexander: “I enjoyed having dinner tonight at the home of Senator John Cornyn and his wife Sandy with our newest Supreme Court Justice, Neil Gorsuch, Transportation Secretary Chao and a few of my other Senate colleagues to talk about important issues facing our country.”

    Wow. Ethics much? But you won’t hear the usual whiners complaining. Nope. Just crickets.

    Just try to imagine the screechers’ screeching response to this:

    Sen. Bernie Sanders: “I enjoyed having dinner tonight at the home of Senator Warren with Supreme Court Justice, Sonya Sotamayor, USPTO Director Michelle Lee and a few of my other Senate colleagues to talk about important issues facing our country.”

    1. 5.1

      Compare “you won’t hear the usual whiners complaining. Nope. Just crickets.

      with:

      BLAME BOTH.

      1. 5.1.1

        No idea what you’re talking about. By the way, I know that you think that you’re riding on a high white horse with your fellow glibertarians but in fact you’re just straddling a splintered log in your jockeys.

        One of the events I described actually happened. The other one didn’t.

        I know it’s really nuanced for you.

        1. 5.1.1.1

          No idea what you’re talking about

          LOL – of course not.

    2. 5.2

      MM, you been following the uncovered abuses by Obama of FISA to spy on Americans, including Trump; of the cabal in the FBI organizing to get Trump; of the use by the FBI of the unverified Hillary-paid-for Dossier to get warrants to spy on Trump?

      Abuse of power ho.

      1. 5.2.1

        These senators so concerned about abuses of FISA based on a memo they will not show anyone, which was written by a member of Congress with an interest in discrediting the intelligence community, that they voted to continue the FISA program virtually unmodified when a solution to much of their concerns was proposed by a bipartisan group of senators…. hrm… sound like much ado about nothing…

        1. 5.2.1.1

          Squirrel, from my understanding, they will publish the memo within two weeks.

          Regarding Mueller’s team, it is interesting that two of its members were messaging animus towards Trump, and that messages between the date Trump got elected to the date Mueller was appointed of only these two FBI officials were deleted — of course, by accident, — even though they are quoted in other messages as needing to delete their messages.

          It is good that Sessions has ordered an investigation.

          Also, what about a former Prime Minister of England telling the Trump team about Obama’s asking them, England, to spy on Trump because they couldn’t do it legally?

          As the evidence builds here, I am somewhat sure that someone is going to be prosecuted if for no other reason than lying to Congress.

          1. 5.2.1.1.1

            The memo will mean nothing unless the underlying documents that support the memo are also released.

            The members of the Mueller team were removed from the team as soon as their perceived bias was discovered, long before any of their text message became public. The FBI has stated that the issue of the deleted text was a systemic issue that affected the system responsible for saving them. It had nothing to do with the two agents in questions. The “secret society” text has been release and, guess what, it turns out to be nothing but a sarcastic remark about calendaring.

            Again, you avoid the issue. If the allegations against abuse of the FISA court are so jarring, why did the same Republican senators unquestionably renew its authorization without any meaningful reform when meaningful reform was introduced and debated? They are either intellectually dishonest hypocrites or the memo has no foundation in reality.

            1. 5.2.1.1.1.1

              They are either intellectually dishonest hypocrites or the memo has no foundation in reality.

              An odd either/or choice, given that the first part typically applies to ALL politicians (of BOTH parties).

            2. 5.2.1.1.1.2

              Squirrel, Trump told Congress that the program was needed and that he had reversed or done something to assure that the program could no longer be abused. I am no sure exactly what that was.

              1. 5.2.1.1.1.2.1

                Yeah. I’ll believe he did something when I see it. Several senators on the intelligence oversight, who have access to a lot of the pertinent, classified information seem to think that legislative reform is still needed. And who could object? If Trump supposed action fix the problem, let them legislate it into law so no future administration can abuse it (hint: federal law enforcement agencies do not want a fix because it would hamper their domestic use of the data).

        2. 5.2.1.2

          Your comment is awaiting moderation.

          January 24, 2018 at 9:51 am

          “much ado about nothing”

          is not the phrase that fits.

          Try S N A F U or F U B A R

    3. 5.3

      “Sen. Bernie Sanders: “I enjoyed having dinner tonight at the home of Senator Warren with Supreme Court Justice, Sonya Sotamayor, USPTO Director Michelle Lee and a few of my other Senate colleagues to talk about important issues facing our country.””

      Seems fine with me (except Lee is a republican I hear which might be a bit weird for bernie). I didn’t know that senators weren’t allowed to go to supreme court justice/directors houses for dinner? Is that in the ethics guidelines? I thought you could as long as no gifts were given (or maybe it’s a 5$ or “appropriate for the occasion” rule?).

  4. 4

    Gasp – Allergan didn’t want to defend its patents in the PTAB and in district court at the same time? How dare they? Why would any patent owner object to duplicative challenges of their patents (under different claim constructions and lower standards of proof no less)?

    1. 4.1

      Well, since the law expressly permits that so long as the parties are not in privity, or the district court declines to enter a stay, that would be their tough luck.

      Mess with multiple independent parties, deal with multiple attempted strategies to overcome the obstacle. Hardly a problem unique to patent law.

      1. 4.1.1

        Oh. Do you think that’s what Congress wanted? Enforce your patent and then defend it in district court and in the PTAB at the same time? Why should the patentee get only one chance to prove the patent infringed, but the infringer get two or more chances to prove the patent invalid?

        1. 4.1.1.1

          Why should the patentee get only one chance to prove the patent infringed

          The patentee gets a zillion chances to prove that the patent is infringed but you don’t get to drag the same entity into Federal Court after you’ve already lost the case with respect to an allegedly infringing product. That’s just common sense.

          but the infringer get two or more chances to prove the patent invalid?

          Because invalid patents are a blight on the public marketplace, Congress has recognized that there are a lot of invalid patents out there, and Congress has recognized that challenging validity in District Courts can be incredibly expensive.

          Also, if the infringer discovers new art or if the patentee makes new arguments about the scope of its patents, that changes everything. Of course validity can be challenged again under those circumstances.

          Again: invalid (or ineligible) patents are a blight on the public. They limit everybody’s freedom. If it makes life a wee bit harder for patent holders, well, tough f ing shirt. Grow up, already.

        2. 4.1.1.2

          Oh. Do you think that’s what Congress wanted?

          That is absolutely what Congress wanted.

          Why would you think otherwise?

          As for Malcolm’s rant – well, that’s just his cognitive dissonance and “Accuse Others” meme (being the single largest source of blight on these boards) in play again.

          1. 4.1.1.2.1

            As for Malcolm’s rant – well, that’s just his cognitive dissonance

            Also known as “facts that aren’t disputable.”

            Nice try, Billy.

            1. 4.1.1.2.1.1

              Malcolm “facts” in a sea of mindless ad hominem…

              Malcolm truly is the Trump of these comment sections.

    2. 4.2

      Moocow, today it is borderline unethical to complain about unfairness and the lack of due process. People might think that you are trying to pull a fast one.

  5. 3

    To take the “gist” of the questions here and climb a rung on the ladder of abstraction, when is enforcement not considered “bold” by those who are anti-patent?

    1. 3.1

      those who are anti-patent

      You do realize, Billy, that everytime you use this “anti-patent” phrase your credibility sinks deeper into the negative range.

      But Big Jeans will certainly give you a cookie so we are sure that you will continue pressing your silliness.

      1. 3.1.1

        Your “billy” attempt at denigration needs to be retired.

        Your 0bsess10n with Quinn also needs to be let go.

        YOUR view of my credibility has zero to do with reality.

        1. 3.1.1.1

          When you and Big Jeans and Co. retire your reflexive and silly habit of labeling anyone who isn’t as fully supportive of patent maximalization as you are as “anti-patent” then you can rest assured that a lot of things will change.

          But that’s not ever going to happen, is it?

          1. 3.1.1.1.1

            You are having difficulty with your cognitive dissonance again Malcolm.

            Put directly, you ARE anti-patent.

            That should not be a surprise to anyone.

            Try to grasp that. Isn’t that like Step One in dealing with your feelings?

          2. 3.1.1.1.2

            Since when have you had a problem with labels? Ever heard that saying about the pot and kettle?

  6. 2

    Dennis, for the purposes of an antitrust violation, one must know that the patent he or she is asserting is invalid. But an IPR only decides that a patent is unpatentable. This cannot be the same thing. Right?

    1. 2.1

      for the purposes of an antitrust violation, one must know that the patent he or she is asserting is invalid. But an IPR only decides that a patent is unpatentable. This cannot be the same thing. Right?

      What?

      1. 2.1.1

        Asserting an invalid patent knowing that it is invalid is the violation. Even if claim is held unpatentable by the PTAB using BRI and preponderance, it is not necessarily invalid. The burden of proof to prove the AT violation remains with the plaintiff. They need to prove the patent invalid (by clear and convincing evidence) before they can carry that burden.

        1. 2.1.1.1

          jailbreak…?

          Your comment is awaiting moderation.
          January 23, 2018 at 6:53 pm
          Even if claim is held unpatentable by the PTAB using BRI and preponderance, it is not necessarily invalid.

          Do you have even a single instance of such a thing? Of anyone else anywhere saying anything even remotely similar?

          This seems like your (rather odd) prior assertion that ONLY an Article III court decision wrecks the property rights of a granted patent (which of course is patently false, given the AIA).

          1. 2.1.1.1.1

            anon, I recall a recent case where a patent owner was still permitted to pursue past damages regardless that the PTAB had cancelled the asserted claims after an IPR.

            1. 2.1.1.1.1.1

              would love to see that, if you can find it (and it is not one of those things in which a court case – separate – had ALREADY been finalized, as such would simply not accord with your proposition here)

  7. 1

    “(the patents were .” ?

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