Antitrust law seldom gets a boost in the federal courts any more. Their Honors seem more afraid of the risk that ruling for the plaintiff hurts competition than of the danger that killing a case encourages anticompetitive conduct and deprive consumers of any remedy for it. Fear of "false positives" beats worry about "false negatives".
The Second Circuit went against the trend last week. In Meijer, Inc. v. Ferring B.V. (In re DDAVP Direct Purchaser Antitrust Litig.), No. 06-5525-cv (2d Cir. Oct. 16, 2009), the 3-0 panel upheld claims that the maker of an antidiuretic drug used an invalid patent to suppress competition from generic substitutes. The court concluded that direct buyers of DDAVP (desmopressin acetate) had standing to sue under Sherman Act section 2, which bars monopolization and attempts to monopolize, and stated a viable section 2 claim.
The panel also dealt with a curious jurisdictional issue. If an appeal raises a purely patent law issue, the Federal Circuit and only the Federal Circuit has authority to decide it. The DDAVP panel noted that a key part of the monopolization claim — that Ferring misused an invalid patent — turned on patent validity, a core patent law issue. But that didn't matter, the court held, because a sliver of the case didn't require proof of invalidity. That piece asserted delay in getting generics to market due to Ferring's failure to withdraw a delay-causing petition with the Food and Drug Administration.