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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 Managementand Budget to survey complainants who obtained exclusion orders that are currently in effect toassess 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 properperformance 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 tobe collected; and (4) minimization of the burden of the proposed information collection on thosewho are to respond. The deadline for public comment is June 10, 2013.

Source:

Agency Information Collection Activities; Proposed Collection; Comment Request, FRDoc. 2013-08223 (Apr. 8, 2013), available at

https://www.federalregister.gov/articles/2013/04/09/2013-08223/agency-information-collection-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

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On April 5, a union representing food workers in Pennsylvania filed a class-action lawsuitagainst 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 forWarner 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 PuertoRico who purchased or paid for branded and/or generic Loestrin 24 Fe products, other than forre-sale, since September 2009.

The plaintiffs allege that Warner Chilcott filed sham patent infringement suits against Watsonand 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 ExclusionPayment 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 toa 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 topatients as compared to Loestrin 24 Fe.

Sources:Complaint, United Food and Commercial Workers Local 1776 & ParticipatingEmployers Health and Welfare Fund v. Warner Chilcott (U.S.) LLC et al. (E.D. Pa. Apr.

5, 2013), available athttp://articles.law360.s3.amazonaws.com/0430000/430774//mnt/rails_cache/https-ecf-

paed-uscourts-gov-doc1-153112461301.pdf.

Jonathan Randles, Warner Chilcott Sued Over Loestrin Pay-For-Delay Deals, Law360

(Apr. 8, 2013), available athttp://www.law360.com/competition/articles/430774?nl_pk=cd0232d6-572d-43db-8639-c26c14eb19db&utm_source=newsletter&utm_medium=email&utm_campaign=competiti

on (subscription required).

Reckitt Benckiser Sued Over Alleged Suboxone Product-

Hopping Scheme

On April 5, the Michigan Regional Council of Carpenters Employee Benefits Fund sued ReckittBenckiser in the Eastern District of Pennsylvania alleging that Reckitt engaged in a product-

hopping scheme and other anticompetitive tactics to foreclose generic competition in the marketfor co-formulated buprenorphine/nalaxone, sold under the brand name Suboxone. The centralallegation 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 filmof 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 couldnot 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

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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, Reckittallegedly 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 FDAapproval 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 athttp://articles.law360.s3.amazonaws.com/0430000/430911//mnt/rails_cache/https-ecf-

paed-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-8639-c26c14eb19db&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 andComposers (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 societiesmanaging 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 bytransmission 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 modelcontract for reciprocal representation agreements between its members, under which eachcollecting 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 ofmusical 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 ofCISAC concerning its refusal to grant it a Community-wide license for its music broadcasting

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activities. In 2003, Music Choice Europe lodged a second complaint against CISAC concerningits 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 theirchoice; (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 concertedpractice that was found to exist between the collecting societies by which each collecting societylimited, 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 ofconcerted 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 theneed 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 withrespect 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 CopyrightCollecting 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 athttp://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 companieswhose members include Expedia, Microsoft, Nokia, Oracle, and TripAdvisor, has filed a newcomplaint 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 mobilemarketplace and cement its control over consumer Internet data for online advertising as usageshifts 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 pre-load multiple Google mobile applications and give the applications prominent default placement

on their devices. These requirements allegedly disadvantage other providers and allow Googleto 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.

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Sources:

Press Release,Fairsearch Announces Complaint in EU On Googles Anti-CompetitiveMobile Strategy, FairSearch.org (Apr. 8, 2013), available at

http://www.fairsearch.org/mobile/fairsearch-announces-complaint-in-eu-on-googles-anti-

competitive-mobile-strategy/.

Faaez Samadi,New Google complaint targets mobile software, GCR (Apr. 9, 2013),available athttp://www.globalcompetitionreview.com/news/article/33356/new-google-

complaint-targets-mobile-software/?utm_medium=email&utm_source=Law+Business+Research&utm_campaign=

2352581_GCR+Headlines&dm_i=1KSF,1EF9H,9GQ5GA,4R7T5,1 (subscriptionrequired).

UPCOMING PROGRAMS

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

CanadaApril 23, 2013Noon-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, andthe 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 ECscurrent review of its Technology Transfer Block Exemption Regulation and Guidelines. The

program will also include hypothetical questions aimed at providing a comparative analysis ofthe 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 WorkshopMay 7, 201312:00-1:15 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 privatepractice 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

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

Identifying Antitrust Issues in IP MattersMay 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 Lawand 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 propertymatters. 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 JapanJune 19, 2013

9:30-10:45 AM Eastern

In this joint program hosted by the Intellectual Property and International Committees, panelistsfrom 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 ashypothetical questions aimed at providing a comparative analysis of the different jurisdictions.

To attend via teleconference, please register athttp://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.

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