>>I believe the FTC could very easily find that this behavior is anti-competitive and force SEPR to deal with companies other than the maker of the parent drug.<<
I just don't see what grounds the FTC could use to find this deal anticompetitive. "This behavior" is simply a licensing agreement, which is standard business practice. The whole point of patents is to provide exclusivity and the whole point of licensing is to make that exclusivity transferable (and so more valuable). How could the FTC decide that in this case that's not allowable?
If you follow the laser vision correction industry, you know about the VISX/Summit Tech situation, which on the surface seems analogous, but probably isn't. Those companies set up Pillar Point as a holding entity for their respective patents, which they then licensed back, in effect combining their IP, controlling, then dividing the market. That raised eyebrows at the FTC (I forget if they ruled against the setup, or simply used persuasion), which forced a break-up. But there was the holding entity structure, and both partners basically wanted out anyway, so they didn't fight to keep it.
Waxman may not like the effect of SEPR's strategy, but I don't see how anyone can stop it, short of rewriting the legislation.
And by the way, it seems to me your suggested remedy, that SEPR license its drugs to all comers, would be unprecedented and contrary to the whole drift of patent law.
|
