Amici Curiae Brief of 66 Law, Economics, Business, and Medical Professors in Support of Plaintiffs-Appellants
Seventh Circuit brief in UFCW Local 1500 Welfare Fund v. AbbVie Inc.
35 Pages Posted: 9 Oct 2020
Date Written: October 9, 2020
A company collects more than 100 patents on a drug. It then aggressively asserts this “patent thicket” and enters into settlements with each of the competitors that could enter the market, paying them to delay their entry for years. The company admits that its strategy is to “make it more difficult” for rivals forced to “contend with [its] extensive patent estate.”
Does this violate antitrust law? That presents a nuanced issue. But at least it deserves consideration, which could ultimately involve the weighing of the thicket’s benefits against the anticompetitive harms of abusing this collection.
In this litigation, involving the biologic Humira, the district court never allowed this critical debate to play out. In particular, it short-circuited the analysis by making fundamental errors on how to (1) analyze settlements, (2) assess sham conduct, and (3) determine causation. Because of these errors, the brief requests that the Seventh Circuit reverse.
Keywords: antitrust, patent, thicket, Humira, settlement, pay for delay, sham litigation
JEL Classification: I18, K21, L40, L41, L43, L65, O34, O38
Suggested Citation: Suggested Citation