By : Victoria Slind-Flor
Source : http://www.businessweek.com
Category : Patent Infringement
Merck & Co. (MRK) (MRK)’s Schering-Plough unit must face a challenge to its agreement with competitors to keep generic versions of its drug K-Dur off the market, an appeals court ruled, reversing a lower-court antitrust decision.
Wholesalers and pharmacies sued Schering-Plough beginning in 2001 over allegedly unlawful agreements to delay the entry into the market of generic versions of K-Dur, a treatment for low blood levels of potassium. Consumers incurred extra costs of more than $100 million because of the deals, according to the plaintiffs.
A lower court ruled in favor of the company in 2010. The federal appeals court in Philadelphia overturned that decision yesterday and asked the lower court to reconsider its ruling.
“This is a landmark decision that clarifies why these pay- for-delay deals violate mainstream antitrust law,” said David Balto, a Washington-based antitrust attorney who represents consumer groups opposed to such agreements. “The decision will finally reverse the past decade of misguided decisions that have cost consumers billions in higher drug prices.”
“We are disappointed with today’s ruling,” Ron Rogers, a spokesman for Whitehouse Station, New Jersey-based Merck, said in an e-mail statement. “We are reviewing the decision and will consider all our options.”
Merck bought Schering-Plough in 2009.
Federal appeals panels in New York, Atlanta and Washington have upheld such agreements as long as they don’t delay generic drugs beyond the expiration of the underlying patents. The U.S. Federal Trade Commission has campaigned to block the deals, which are sometimes reached on the eve of patent trials, saying they cost consumers about $3.5 billion a year in higher prescription drug prices.
“We cannot agree with those courts that apply the scope of the patent test,” the Philadelphia panel said in its opinion. “In our view, that test improperly restricts the application of antitrust law.”
“The Third Circuit Court of Appeals seems to have gotten it just right: These sweetheart deals are presumptively anticompetitive,” said FTC Chairman Jon Leibowitz in a statement. “It’s time for the pharmaceutical companies to return to the side of consumers.”
The agreements, also known as reverse payments, permit the sharing of “monopoly rents” between would-be competitors without any assurance that the underlying patent is valid, the appeals panel said.
The appeals court directed the lower court to apply an analysis based on “the economic realities of the reverse payment settlement rather than the labels applied by the settling parties.”
In a statement, Ralph G. Neas, president and chief executive officer of the Washington-based Generic Pharmaceutical Association, called the decision “inconsistent” with other federal court rulings.
The case is In re K-Dur Antitrust Litigation, 10-2077, 10- 2078, 10-2079, U.S. Court of Appeals for the Third Circuit (Philadelphia).
For more patent news, click here
Trademark
Whole Foods Sues Vitamin Shoppe Over ‘Health Starts Here’ Mark
Vitamin Shoppe Inc. (VSI) (VSI), the North Bergen, New Jersey-based supplement retailer, was sued for trademark infringement by Whole Foods Market Inc. (WFM) (WFM)
The suit, filed in federal court in Austin, Texas, accused Vitamin Shoppe of infringing Whole Foods’ “Heath Starts Here” trademarks.
According to court papers, Whole Foods has used this mark since 2009 as part of a campaign to promote good nutritional practices and its chain of retail stores. The company registered the mark in 2011 for use with retail grocery services, raising public awareness of proper nutrition and diet, and printed recipes as a component of food packaging, according to the database of the U.S. Patent and Trademark Office.
Whole Foods, of Austin, Texas, objects to the Vitamin Shoppe’s “Core Health Starts Here” campaign. The grocery company said that to no avail it sent a cease-and-desist notice to the Vitamin Shoppe.
The public can be confused into falsely assuming an affiliation exists between the two companies, according to court papers. Whole Foods accuses the Vitamin Shoppe of attempting to trade on goodwill and fame of the grocery company through its use of a similar slogan and claims it is harmed by the Vitamin Shop’s actions.
In addition to seeking a ban on the Vitamin Shoppe’s use of “Core Health Starts Here,” Whole Foods is seeking destruction of all offending promotional materials and awards of money damages, litigation costs and attorney fees.
Vitamin Shoppe spokeswoman Susan McLaughlin said in an e- mail that her company doesn’t comment on pending litigation.
Whole Foods is represented by in-house counsel Jay Warren and Louis T. Pirkey, Christopher L. Graff and Jered E. Matthysse of Austin’s Pirkey Barber PLLC.
The case is Whole Foods Market IP LP v. Vitamin Shoppe Industries Inc., 1:12-cv-00633, U.S. District Court, Western District of Texas (Austin).
Google Antitrust Probe Should Be Settled, EU Regulator Says
The European Union’s antitrust chief said he’d rather settle an antitrust probe over claims Google Inc. (GOOG) (GOOG) discriminates against rivals than pursue an enforcement action against the world’s largest Web-search engine.
“In these fast-moving markets with new activities, new products and new services, I prefer to find remedies as soon as possible and this is easier,” EU Competition Commissioner Joaquin Almunia said yesterday in an interview, referring to a settlement.
Earlier this month, Google outlined a proposal to end the EU antitrust investigation. The probe is reviewing allegations that the company promotes its own specialist search-services, copies rivals’ travel and restaurant reviews, and has agreements with websites and software developers that stifle competition in the advertising industry.
Source : http://www.businessweek.com/news/2012-07-17/merck-whole-foods-google-wang-lo-kat-intellectual-property
Source : http://www.businessweek.com
Category : Patent Infringement
Merck & Co. (MRK) (MRK)’s Schering-Plough unit must face a challenge to its agreement with competitors to keep generic versions of its drug K-Dur off the market, an appeals court ruled, reversing a lower-court antitrust decision.
Wholesalers and pharmacies sued Schering-Plough beginning in 2001 over allegedly unlawful agreements to delay the entry into the market of generic versions of K-Dur, a treatment for low blood levels of potassium. Consumers incurred extra costs of more than $100 million because of the deals, according to the plaintiffs.
A lower court ruled in favor of the company in 2010. The federal appeals court in Philadelphia overturned that decision yesterday and asked the lower court to reconsider its ruling.
“This is a landmark decision that clarifies why these pay- for-delay deals violate mainstream antitrust law,” said David Balto, a Washington-based antitrust attorney who represents consumer groups opposed to such agreements. “The decision will finally reverse the past decade of misguided decisions that have cost consumers billions in higher drug prices.”
“We are disappointed with today’s ruling,” Ron Rogers, a spokesman for Whitehouse Station, New Jersey-based Merck, said in an e-mail statement. “We are reviewing the decision and will consider all our options.”
Merck bought Schering-Plough in 2009.
Federal appeals panels in New York, Atlanta and Washington have upheld such agreements as long as they don’t delay generic drugs beyond the expiration of the underlying patents. The U.S. Federal Trade Commission has campaigned to block the deals, which are sometimes reached on the eve of patent trials, saying they cost consumers about $3.5 billion a year in higher prescription drug prices.
“We cannot agree with those courts that apply the scope of the patent test,” the Philadelphia panel said in its opinion. “In our view, that test improperly restricts the application of antitrust law.”
“The Third Circuit Court of Appeals seems to have gotten it just right: These sweetheart deals are presumptively anticompetitive,” said FTC Chairman Jon Leibowitz in a statement. “It’s time for the pharmaceutical companies to return to the side of consumers.”
The agreements, also known as reverse payments, permit the sharing of “monopoly rents” between would-be competitors without any assurance that the underlying patent is valid, the appeals panel said.
The appeals court directed the lower court to apply an analysis based on “the economic realities of the reverse payment settlement rather than the labels applied by the settling parties.”
In a statement, Ralph G. Neas, president and chief executive officer of the Washington-based Generic Pharmaceutical Association, called the decision “inconsistent” with other federal court rulings.
The case is In re K-Dur Antitrust Litigation, 10-2077, 10- 2078, 10-2079, U.S. Court of Appeals for the Third Circuit (Philadelphia).
For more patent news, click here
Trademark
Whole Foods Sues Vitamin Shoppe Over ‘Health Starts Here’ Mark
Vitamin Shoppe Inc. (VSI) (VSI), the North Bergen, New Jersey-based supplement retailer, was sued for trademark infringement by Whole Foods Market Inc. (WFM) (WFM)
The suit, filed in federal court in Austin, Texas, accused Vitamin Shoppe of infringing Whole Foods’ “Heath Starts Here” trademarks.
According to court papers, Whole Foods has used this mark since 2009 as part of a campaign to promote good nutritional practices and its chain of retail stores. The company registered the mark in 2011 for use with retail grocery services, raising public awareness of proper nutrition and diet, and printed recipes as a component of food packaging, according to the database of the U.S. Patent and Trademark Office.
Whole Foods, of Austin, Texas, objects to the Vitamin Shoppe’s “Core Health Starts Here” campaign. The grocery company said that to no avail it sent a cease-and-desist notice to the Vitamin Shoppe.
The public can be confused into falsely assuming an affiliation exists between the two companies, according to court papers. Whole Foods accuses the Vitamin Shoppe of attempting to trade on goodwill and fame of the grocery company through its use of a similar slogan and claims it is harmed by the Vitamin Shop’s actions.
In addition to seeking a ban on the Vitamin Shoppe’s use of “Core Health Starts Here,” Whole Foods is seeking destruction of all offending promotional materials and awards of money damages, litigation costs and attorney fees.
Vitamin Shoppe spokeswoman Susan McLaughlin said in an e- mail that her company doesn’t comment on pending litigation.
Whole Foods is represented by in-house counsel Jay Warren and Louis T. Pirkey, Christopher L. Graff and Jered E. Matthysse of Austin’s Pirkey Barber PLLC.
The case is Whole Foods Market IP LP v. Vitamin Shoppe Industries Inc., 1:12-cv-00633, U.S. District Court, Western District of Texas (Austin).
Google Antitrust Probe Should Be Settled, EU Regulator Says
The European Union’s antitrust chief said he’d rather settle an antitrust probe over claims Google Inc. (GOOG) (GOOG) discriminates against rivals than pursue an enforcement action against the world’s largest Web-search engine.
“In these fast-moving markets with new activities, new products and new services, I prefer to find remedies as soon as possible and this is easier,” EU Competition Commissioner Joaquin Almunia said yesterday in an interview, referring to a settlement.
Earlier this month, Google outlined a proposal to end the EU antitrust investigation. The probe is reviewing allegations that the company promotes its own specialist search-services, copies rivals’ travel and restaurant reviews, and has agreements with websites and software developers that stifle competition in the advertising industry.
Source : http://www.businessweek.com/news/2012-07-17/merck-whole-foods-google-wang-lo-kat-intellectual-property
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