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« AMP v. Myriad: A Bad Day At Black Rock | Main | IPO Webinar on FTC v. Actavis »

June 17, 2013

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Comments

Kevin,

These reverse payments cases were never about negating all potential for an anti-trust action; that was true even in the 11th, 2nd, and Federal Circuit which accepted the "scope of the patent" rationale for the legality of such reverse-payments. But the "good news" is that all 8 Justices rejected the FTC's presumptive illegality/per se illegal rationale of the 3rd Circuit's In re K-Dur Antitrust Litigation decision which the FTC strove so hard to put in place. Under a "Rule of Reason" approach, the FTC (and other plaintiffs) are going to have much a harder time because there's no presumption of anti-trust violation in such reverse payments under Actavis.

Thanks for the write up, Kevin. One comment regarding this:

"For this reason (as well as the majority's antipathy to patenting in the medical area; see Mayo v. Prometheus and AMP v. Myriad)"

I don't believe that the Mayo decision had much or anything to do with a supposed "antipathy to patenting in the medical area". The Mayo decision was about an antipathy to using patents to protect facts (you'll recall that Prometheus accused Mayo's doctors of infringing their patent when the doctors merely looked at old test results and thought about a correlation that Prometheus had disclosed in their patent specification). That's why the holding in that case applies to all the "useful arts", not just medicine.

As for Myriad, there, too, the Court seemed less concerned with "patenting in the medical area" and more concerned with composition claims that were so broad that the patentee had (allegedly) de facto ownership of all inventive applications of their discovery but, for all practical purposes (allegedly), ownership of a part of the human genome.

I think the Supreme Court very much believes in patents and their role in our society. I also think that the Supreme Court believes that the patent system has been hijacked to a certain extent by entities who are less concerned with inventing useful compositions and methods and protecting them than they are with obtaining patents that can be "monetized" at the expense of everyone else and at the expense of the health of the system itself.

Not to 'impugn' Vivika M., but the presence of the troll Malcolm Mooney seems to have infected this blog.

I think one of Malcolm Mooney's favorite words is appropriate here: dissembling.

With respect to Dr. Noonan, I will not engage any of the Malcolm Mooney "sockpuppets" here, as he has shown no inclination elsewhere to address the merits of any legal discussion.

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