Copyright 2008. All rights reserved.
The Minnesota State Bar Association ("MSBA") invited Federal Trade Commission ("FTC") Assistant Director of Policy and Coordination Suzanne Michel to speak in Minnesota on December 10 about hot topics in intellectual property and antitrust law. The MSBA held the talk over lunch at the Grand Hotel in downtown Minneapolis.
Standards setting was among the topics of discussion during the lunch presentation, in which Ms. Michel addressed the benefits and pitfalls of standard setting organizations and their implications for patent and antitrust law. Ms. Michel discussed the FTC's activities in two recent standard setting cases: Rambus, which involves the development of computer memory technologies, and N-Data, which involves the IEEE Ethernet standard.
Ms. Michel also discussed the FTC's joint report with the DOJ on "Antitrust Enforcement and Intellectual Property Rights: Promoting Innovation and Competition" (April 2007), which addresses topics such as refusals to license patents, collaboratively set standards, and cross-licensing.
Ms. Michel concluded her talk on the FTC's position on pharmaceutical patent settlements as potentially anti-competitive. Courts that have addressed the issue-Schering-Plough, Cephalon, Ciprofloxacin Hydrochloride-typically find that a patent-holder's right to choose its means of enforcement includes paying an accused generic infringer to agree to stay off the market for an agreed period of time. Ms. Michel believes that courts addressing these issues often fail to decide whether the generic drug manufacturer actually infringes the patent or to even reach the antitrust analysis at all. "When a patentee pays an accused infringer to stay off the market," Ms. Michel asks, "what is the source of the exclusion? The patent, or the money?"
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