United States Federal Circuit

In a suit alleging that a settlement agreement between the patent holder for the antibiotic Cipro and a generic manufacturer violated federal and state antitrust laws, summary judgment for defendants is affirmed where: 1) there was no Sherman Act violation because any anti-competitive effects caused by the settlement agreements were within the exclusionary zone of the Cipro patent; and 2) state antitrust and consumer-protection claims were properly dismissed as preempted by federal law.

Appellate Information

• Decided 10/15/2008
• Published 10/15/2008

Judges

• PROST, Circuit Judge., Before SCHALL and PROST, Circuit Judges, and WARD, District Judge.

Court

• United States Federal Circuit

Counsel

• For Appellant:
  
• J. Douglas Richards, Pomerantz Haudek Block Grossman & Ross LLP, New York, NY, argued for all plaintiffs-appellants.   With him on the brief were Christopher J. McDonald, Labaton Sucharow LLP, of New York, NY, and Patrick E. Cafferty, Cafferty Faucher LLP, of Ann Arbor, MI, Of counsel were Dan Drachler, Zwerling, Schachter & Zwerling, LLP, of Seattle, WA;  Robert S. Schachter and Joseph Lipofsky, of New York, NY;  Eric B. Fastiff and Joseph R. Saveri, Lieff Cabraser Heiman & Bernstein, LLP, of San Francisco, CA;  and David Kalow and Scott D. Locke, Kalow & Springut LLP, of New York, NY., Cheryl L. Johnson, Deputy Attorney General, Los Angeles, CA, for amici curiae The State of Alabama, et al.   With her on the brief were Manuel Medeiros, Solicitor General;  Janet Gaard, Chief Assistant Attorney General;  Kathleen Foote, Senior Assistant Attorney General;  and Edmund G. Brown, Jr., Attorney General, of The State of California, of Sacramento, CA., Professor Mark A. Lemley, Stanford Law School, of Stanford, CA, for amici curiae, Law Professors John R. Allison, et al., Imad D. Abyad, Attorney, Federal Trade Commission, of Washington, DC, for amicus curiae Federal Trade Commission.   With him on the brief were William Blumenthal, General Counsel;  John D. Graubert, Principal Deputy General Counsel, and John F. Daly, Deputy General Counsel for Litigation.   Of counsel were Jeffrey Schmidt, Director, Suzanne T. Michel, Assistant Director;  and Elizabeth R. Hilder, Attorney., Bruce B. Vignery, AARP Foundation Litigation, of Washington, DC, for amici curiae AARP, et al., Don L. Bell, II, National Association of Chain Drug Stores, of Alexandria, Virginia, for amicus curiae National Association of Chain Drug Stores., Elizabeth M. Locke, Kirkland & Ellis LLP, of Washington, DC, for amicus curiae Generic Pharmaceutical Association.   With her on the brief was Susan E. Engel.


• For Appellees:
  
• Fred H. Bartlit, Jr., Bartlit Beck Herman Palenchar & Scott LLP, of Chicago, IL, argued for all defendants-appellees.   With him on the brief were Peter B. Bensinger, Jr., Michael J. Valaik, and Paul J. Skiermont, for Bayer AG, et al.   Of counsel on the brief were Phillip A. Proger, Kevin D. McDonald, and Lawrence D. Rosenberg, Jones Day, of Washington, DC., Karen N. Walker, Kirkland & Ellis LLP, of Washington, DC, for defendant-appellee Barr Laboratories, Inc. With her on the brief were Edwin John U, Bridget K. O'Connor and Gregory L. Skidmore., David E. Everson, Stinson Morrison Hecker LLP, of Kansas City, MO, for defendants-appellees Hoechst Marion Roussel, Inc., et al.   With him on the brief were Heather S. Woodson and Victoria L. Smith.