Category: Antitrust  
By: Roy Rabindranath, Contributor 
TitleTyco Health Group LP v. Mutual Pharmaceutical Company, Inc. (Fed. Circ. August 6, 2014).
Issue[Whether the district court’s summary judgment order that Tyco did not violate the antitrust laws by [(1) filing an alleged “sham infringement lawsuit”] against Mutual or [(2)] by filing [an alleged sham “citizen petition”] with the Food and Drug Administration (“FDA”) seeking to bar Mutual from obtaining FDA permission to market its generic version of one of Tyco’s drugs [under Mutual’s Abbreviated New Drug Application (ANDA) with the FDA].
Tyco Healthcare Group, at *2 (text added).
HoldingThere is a recognized exception to Noerr-Pennington immunity for “sham litigation,” which the Supreme Court has defined as litigation that (1) is “objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits” (the objective element), and (2) is motivated by a desire “to interfere directly with the business relationships of a competitor” (the subjective element). Prof’l Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60-61 (1993) (“PRE”). […] PRE’s two part test, however, is not limited to court litigation; it has been applied to administrative petitions, including FDA citizens petitions.
Id. at *8 15 (text added, internal citations omitted).
Category: Antitrust 
By: John Kirkpatrick, Contributor  
TitleCascades Comp. Innovations LLC v. RPX Corp., No. 4:12-cv-01143 (N.D. Cal. Dec. 3, 2013).
[1] Cascades' Section 1 claims require Cascades to allege a plausible conspiracy—in this case, a hub-and-spoke conspiracy in which RPX is the hub and the Manufacturing Defendants are the spokes. Cascades Comp. Innovation at *10.
[2] Defendants further contend that, even if the Court finds a restraint of trade, Cascades has pled no unreasonable restraint of trade [under Section 1]. Id. at *20.
[3] [Cascades' Section 2 claims] must allege [among others] monopsony power in the relevant market. Id. at *25 (text added).
[1a] The allegations plausibly describe an invitation to common action [i.e., agreement among the Manufacturing Defendants], and to have RPX coordinate that action. Cascades Comp. Innovations  at *18 (text added).
[1b] [Refraining] from exercising [...] right to negotiate individually [and] deal [...] either through [RPX] or not at all [supports] the inference of a second, "off-the-books" agreement or understanding between each Manufacturing Defendant and RPX. Id. at *19 (text added, citations removed).
[2a] [In view most favorable to Cascades,] settlements by [other RPX members] could support an inference that [Cascade's U.S. Patent No. 7,065,750] was valid and infringed, lends a competitive advantage, and had been driven to sub-competitive prices by the three Manufacturing Defendants' domination of the buyer's market, leading smaller players to capitalize on the market conditions [i.e., restraint on trade] created by the alleged conspiracy. Id. at *20-21 (text added).
[2b] [In alleging an unreasonable restraint on trade the] proper focus of the market analysis in monopsony cases is "the commonality and interchangeability of the buyers, not the commonality or interchangeability of the sellers." Id. at *23.
[3] Nothing in [Cascades' First Amended Complaint ("FAC")] suggests that anyone would or could participate in the "upstream" market for the '750 Patent except for the makers of the Android devices. Id. at *26.
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