An amicus curiae brief recently filed by the US Department of Justice ("DoJ") has provided insight into the evolving US position on this grey area of antitrust law.
An antitrust suit filed against AbbVie and biosimilar companies on behalf of indirect US purchasers of Humira claimed Abbvie's strategy of filing of over 100 patents for Humira amounted to a 'patent thicket'. The decision was appealed to the US Court of Appeals after being dismissed in its entirety at first instance and the DoJ has now submitted an amicus curiae brief. In this brief, the DoJ has clearly set out its view on the lawfulness of 'patent thickets' and has suggested that deficiencies in the patent system should not "be remedied by antitrust law".
Competition lawyers will be interested to see whether the appeal court aligns itself with the DoJ in its decision as well as to see the findings of a recently-launched European Commission investigation into possible abuse of dominance relating to filings of divisional patents. The outcomes of these proceedings will provide greater insight on how closely aligned US antitrust and EU competition laws are on this issue.
Read the full article on our competition law blog, The CLIP Board - Should the patent procurement process fall under the remit of antitrust law? - A US perspective.
Originally published 15.03.2021
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