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PUBPAT in the Supreme Court » PUBPAT Files Briefs With Supreme Court in Cases Involving Patent Holders Eliminating Competition


NEW YORK -- December 23, 2005 --  The Public Patent Foundation ("PUBPAT") filed briefs with the United States Supreme Court this week in two separate cases involving the use of patents to destroy competition. The first brief, filed Wednesday with coauthors AARP and Consumer's Union, involves the leveraging of a patent through tying arrangements to retrain competition in markets for goods not covered by the patent. The second brief, filed today in support of the Federal Trade Commission, addresses the collusive settlement of a patent infringement lawsuit whereby a potential competitor agrees not to enter the market in exchange for a payment from the patent holder.

“In two separate cases this term, the Supreme Court is being asked whether having a patent means you have free reign to destroy competition any way you see fit," said PUBPAT Executive Director, Dan Ravicher. "In one case you have a patent holder forcing people to buy something they don't want or need and in the other you have two pharmaceutical companies conspiring to share the profits from only one of them selling a drug instead of having to compete with one another. Such anti-competitive behavior disregards the fundamental American principle of a fair marketplace where consumers benefit from greater choice and lower prices."

The joint AARP, PUBPAT and Consumer's Union brief, filed in the case Illinois Tool Works Inc. v. Independent Ink, Inc., identified for the Court the growing trend in the pharmaceutical industry of so-called “combination” pills that combine a patent protected drug with another drug not covered by a patent that would otherwise be subject to full competition. By selling a patented drug only as part of a combination pill, pharmaceutical companies force patients to purchase their version of the unpatented drug, regardless of whether it is the safest or most effective version that is available to them. Today's brief, filed in Federal Trade Commission v. Schering-Plough Corp., highlighted for the court the fact that no patent gives its owner the right to exclude from the marketplace all products. As such, the lower court's assumption that a patent owner will be successful in asserting its patent against any given product was wrong and will, if left uncorrected, be harmful to America's competition-based economy.

PUBPAT's briefs to the United States Supreme Court can be found at PUBPAT in the Courts.

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