APRIL 8-12, 2013

THIS WEEKS CONTRIBUTING AUTHOR IS ERIC BARSTAD EDITED BY KOREN W. WONG-ERVIN PATENTS

ITC to Conduct Study to Gauge the Effectiveness of Exclusion Orders

On April 9, the ITC announced that it intends to seek approval from the Office of Management and Budget to survey complainants who obtained exclusion orders that are currently in effect to assess the effectiveness of the exclusion orders in stopping certain imports. Public comments are solicited as to: (1) whether the proposed information collection is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agencys estimate of the burden of the proposed information collection; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) minimization of the burden of the proposed information collection on those who are to respond. The deadline for public comment is June 10, 2013. Source: Agency Information Collection Activities; Proposed Collection; Comment Request, FR Doc. 2013-08223 (Apr. 8, 2013), available at https://www.federalregister.gov/articles/2013/04/09/2013-08223/agency-informationcollection-activities-proposed-collection-comment-request. PHARMACEUTICALS

Class-Action Suit Filed Against Warner Chilcott, Watson, and Lupin Over Alleged Pay-for-Delay Settlements and Product Hopping
1

On April 5, a union representing food workers in Pennsylvania filed a class-action lawsuit against Warner Chilcott, Watson, and Lupin alleging that the defendants engaged in unlawful reverse-payment settlements and product hopping to delay the entry of generic competition for Warner Chilcotts Loestrin oral contraceptive. The United Food and Commercial Workers Local 1776 & Participating Employers Health and Welfare Fund filed the suit in the Eastern District of Pennsylvania on behalf of all consumers and third-party payors in the United States and Puerto Rico who purchased or paid for branded and/or generic Loestrin 24 Fe products, other than for re-sale, since September 2009. The plaintiffs allege that Warner Chilcott filed sham patent infringement suits against Watson and Lupin and then entered into Exclusion Payment Agreements pursuant to which Warner paid Watson and Lupin to delay entry into the market until January and July 2014, respectively. According to the plaintiffs, absent the agreements, generic versions of the drug would have been available in January 2009. The plaintiffs also allege that after entering into the Exclusion Payment Agreements, Warner Chilcott then sought to impair generic competition beyond the expiration of its Loestrin 24 Fe patent by seeking to convert prescriptions from Loestrin 24 Fe to a follow-on product called Lo Loestrin, which is ostensibly patent protected until February 2029. According to the plaintiffs, Lo Loestrin provides no medical, convenience, or other benefits to patients as compared to Loestrin 24 Fe. Sources: Complaint, United Food and Commercial Workers Local 1776 & Participating Employers Health and Welfare Fund v. Warner Chilcott (U.S.) LLC et al. (E.D. Pa. Apr. 5, 2013), available at http://articles.law360.s3.amazonaws.com/0430000/430774//mnt/rails_cache/https-ecfpaed-uscourts-gov-doc1-153112461301.pdf. Jonathan Randles, Warner Chilcott Sued Over Loestrin Pay-For-Delay Deals, Law360 (Apr. 8, 2013), available at http://www.law360.com/competition/articles/430774?nl_pk=cd0232d6-572d-43db-8639c26c14eb19db&utm_source=newsletter&utm_medium=email&utm_campaign=competiti on (subscription required).

Reckitt Benckiser Sued Over Alleged Suboxone ProductHopping Scheme

On April 5, the Michigan Regional Council of Carpenters Employee Benefits Fund sued Reckitt Benckiser in the Eastern District of Pennsylvania alleging that Reckitt engaged in a producthopping scheme and other anticompetitive tactics to foreclose generic competition in the market for co-formulated buprenorphine/nalaxone, sold under the brand name Suboxone. The central allegation in the complaint is that two years prior to the expiration of Suboxones orphan drug exclusivity, Reckitt filed an application and received FDA approval to market a sublingual film of Suboxone rather than the tablet version it had previously marketed. The plaintiff alleges that Reckitt did so because the difference in dosage form meant that generic Suboxone tablets could not be considered AB-rated equivalents to branded Suboxone film, which meant that pharmacists could not legally substitute the less-expensive generic Suboxone tablets when presented with a
2

prescription for Suboxone film. According to the plaintiff, after introducing Suboxone film, Reckitt took a number of steps to replace Suboxone tablets with film. First, Reckitt allegedly raised the price for Suboxone tablets, driving demand to Suboxone film. Second, Reckitt allegedly refrained from packaging Suboxone tablets in childproof unit-dose packaging in order to degrade the quality of Suboxone tablets relative to Suboxone film. The plaintiff also alleges that Reckitt sought to sabotage would-be generic Suboxone tablet sellers from obtaining FDA approval by delaying joint submissions and filing sham citizen petitions with the FDA. Sources: Complaint, Michigan Regional Council of Carpenters Employee Benefits Fund v. Reckitt Benckiser Inc. (E.D. Pa. Apr. 5, 2013), available at http://articles.law360.s3.amazonaws.com/0430000/430911//mnt/rails_cache/https-ecfpaed-uscourts-gov-doc1-153112462429.pdf. Ama Sarfo, Union Fund Hits Reckitt With Suboxone Antitrust Suit, Law360 (Apr. 8, 2013), available at http://www.law360.com/competition/articles/430911?nl_pk=cd0232d6-572d-43db-8639c26c14eb19db&utm_source=newsletter&utm_medium=email&utm_campaign=competiti on (subscription required). COPYRIGHTS

EU General Court Partially Annuls Commission Decision Finding Anticompetitive Conduct on the Part of Copyright Collecting Societies
On April 12, the General Court for the European Union annulled a Commission decision finding a concerted practice among the International Confederation of Societies of Authors and Composers (CISAC) and 24 copyright collecting societies to fix the national territorial limitations for musical copyright licenses to commercial users. The CISAC is a non-profit non-governmental organization that represents collecting societies managing copyright related to musical works in over a hundred countries. The collecting societies acquire the management of those rights either by direct transfer from the authors or by transmission from another collecting society managing the same categories of rights in another country. The collecting societies grant exploitation licenses to commercial users, such as broadcasting undertakings or organizers of live shows. In 1936, the CISAC created a model contract for reciprocal representation agreements between its members, under which each collecting society reciprocally agrees to confer the rights over its repertoire to all of the other collecting societies, which allows each collecting society to propose a worldwide portfolio of musical works to commercial users, but only for use in its own territory. In 2000, RTL Group SA lodged a complaint with the European Commission against a member of CISAC concerning its refusal to grant it a Community-wide license for its music broadcasting
3

activities. In 2003, Music Choice Europe lodged a second complaint against CISAC concerning its model contract. In July 2008, the Commission issued a decision prohibiting: (1) clauses in the model contract that restrict authors ability to affiliate freely to the collecting society of their choice; (2) clauses in the model contract that have the effect of providing all collecting societies, in the territory in which they are established, with absolute territorial protection vis--vis other collecting societies with respect to granting licenses to commercial users; and (3) a concerted practice that was found to exist between the collecting societies by which each collecting society limited, in the reciprocal representation agreements, the right to grant licenses relating to its repertoire in the territory of another collecting society party to the agreement. The General Court annulled the Commissions decision with respect to the finding of the concerted practice, stating that the Commission did not have documents proving the existence of concerted action, and did not render implausible the applicants explanation that the parallel conduct of the collecting societies at issue was not the result of concerted action, but rather of the need to fight effectively against the unauthorized use of musical works. The General Court rejected the applicants in so far as they sought the annulment of the Commission decision with respect to the membership and exclusivity clauses. Sources: General Court of the EU, Press Release, The General Court Partially Annuls the Commission Decision Finding Anti-Competitive Conduct on the Part of Copyright Collecting Societies (Apr. 12, 2013), available at http://curia.europa.eu/jcms/upload/docs/application/pdf/2013-04/cp130043en.pdf. Judgment of the General Court (Apr. 12, 2013), available at http://articles.law360.s3.amazonaws.com/0432000/432415/CISAC%20Judgement%20%2012%20April%202013.pdf. THE TECHNOLOGY SECTOR

FairSearch.org Submits New EC Complaint Alleging That Google Uses Deceptive Conduct to Dominate Mobile
FairSearch.org, an international coalition of 17 specialized search and technology companies whose members include Expedia, Microsoft, Nokia, Oracle, and TripAdvisor, has filed a new complaint with the European Commission against Google. In a press release, FairSearch announced that the complaint alleges that Google uses deceptive conduct to lock out competition in mobile as part of an anticompetitive strategy to dominate the mobile marketplace and cement its control over consumer Internet data for online advertising as usage shifts to mobile. (Press Release at 1.) According to FairSearch, Android device manufacturers that desire certain must-have Google apps such as Maps, YouTube, or Play are required to preload multiple Google mobile applications and give the applications prominent default placement on their devices. These requirements allegedly disadvantage other providers and allow Google to control consumer data on a majority of smartphones. The complaint also alleges that, by giving away Android for free, Google is engaged in predatory below-cost distribution.
4

Sources: Press Release, Fairsearch Announces Complaint in EU On Googles Anti-Competitive Mobile Strategy, FairSearch.org (Apr. 8, 2013), available at http://www.fairsearch.org/mobile/fairsearch-announces-complaint-in-eu-on-googles-anticompetitive-mobile-strategy/. Faaez Samadi, New Google complaint targets mobile software, GCR (Apr. 9, 2013), available at http://www.globalcompetitionreview.com/news/article/33356/new-googlecomplaint-targets-mobilesoftware/?utm_medium=email&utm_source=Law+Business+Research&utm_campaign= 2352581_GCR+Headlines&dm_i=1KSF,1EF9H,9GQ5GA,4R7T5,1 (subscription required). UPCOMING PROGRAMS

International Licensing Issues in the U.S., EU, Brazil, and Canada

April 23, 2013 Noon-1:15 PM Eastern In this third program of a series of joint programs hosted by the Intellectual Property and International Committees, panelists will explore licensing issues in Brazil, Canada, the EU, and the U.S. Panelists from the FTC, the EC, and private practice, including a former enforcer from CADA, will provide an overview of existing law and discuss new developments such as the ECs current review of its Technology Transfer Block Exemption Regulation and Guidelines. The program will also include hypothetical questions aimed at providing a comparative analysis of the different jurisdictions. To register and receive dial-in information, please visit http://www.americanbar.org/content/dam/aba/marketing/20130423_at13423.pdf

Antitrust and Patent Assertion Entities: The DOJ-FTC Joint Workshop

May 7, 2013 12:00-1:15 Eastern In December 2012, the DOJ and FTC held a joint workshop on patent-assertion entity (PAE) behavior. The DOJ and FTC also solicited comments from the public, which were submitted through April 5, 2013. In this program, panelists from the DOJ, FTC, in-house, and private practice will discuss the recent joint workshop and public comments, as well as explore the legal theories concerning PAE activity through a series of hypothetical scenarios. To register and receive dial-in information, please visit
5

http://www.americanbar.org/content/dam/aba/marketing/20130507_at13507.authcheckdam.pdf

Identifying Antitrust Issues in IP Matters

May 22, 2013 Noon-1:15 PM Eastern In this second of a two-part series of joint programs hosted by the ABA Section of Antitrust Law and the ABA Section of Intellectual Property Law, panelists from the government, in-house, and private practice will discuss how to identify possible antitrust issues in intellectual property matters. Topics will include acquisitions, enforcement, and standard setting. To attend via teleconference, please register at http://www.americanbar.org/content/dam/aba/marketing/20130522_at13522.authcheckdam.pdf

International Licensing Issues in the U.S., India, and Japan

June 19, 2013 9:30-10:45 AM Eastern In this joint program hosted by the Intellectual Property and International Committees, panelists from the FTC, in-house, and private practice will explore licensing issues in the U.S., India, and Japan. The program will include an overview of existing law and new developments, as well as hypothetical questions aimed at providing a comparative analysis of the different jurisdictions. To attend via teleconference, please register at http://www.americanbar.org/content/dam/aba/marketing/20130619_at13619.authcheckdam.pdf A special thanks to Debbie Bellinger and Jaime Owens for their weekly contributions to tidBITS.