In this Law360 article, the authors consider perspectives relevant to antitrust claims based on the use of “patent thickets.” A timely example is provided by the case against AbbVie concerning its alleged anticompetitive accumulation of patents on its blockbuster biologic, Humira, and recently dismissed by the District Court.
Such allegations raise issues that are of broader relevance in light of the widespread use of biologics by patients in the US, the growing number of biosimilar applications, and the relatively large numbers of patents that may be associated with biologic products and manufacturing processes.
The authors consider several perspectives relevant to claims such as those made against AbbVie. Can a patent portfolio be considered an anticompetitive “weapon” given the social benefits associated with biopharmaceutical research and development? Even if some patents in a portfolio are weak, can plaintiffs sustain a monopolization claim given the prospect that at least some patent claims in a large portfolio are likely to be valid and infringed? And if the accumulation of patent portfolios in biologics is seen as socially problematic, is antitrust the appropriate instrument?
In its dismissal of the case against AbbVie, the District Court cited similar concerns. Andrew Tepperman is quoted in a follow-up article by Law360 summarizing the Court’s decision and its implications.