The relationship between antitrust and patent law has historically been an uneasy one. Antitrust is hostile to—or at least skeptical of—restraints of trade, while patent law creates them. That tension is acute when courts consider claims that the very assertion of rights created by a patent is an antitrust violation. The decision of a split appellate panel in Tyco Healthcare Group v. Mutual Pharmaceutical Co., 2014 WL 3844166 (Fed. Cir. Aug. 6, 2014), which rejected certain antitrust claims while sustaining others, is the Federal Circuit’s latest effort to balance these competing interests.

Tyco holds several patents covering formulations of and methods of treatment with Restoril, an anti-insomnia drug. After Mutual, a generic drug manufacturer, filed for Food and Drug Administration (FDA) approval to market a generic version of the drug, Tyco filed suit alleging that Mutual’s proposed generic infringed a Tyco patent. Because all of its other patents on Restoril had expired, Tyco’s claim was based solely on a patent covering a particular Restoril formulation having a specified surface area. The district court held that Mutual’s generic would not infringe and that the patent was invalid as obvious, and its invalidity ruling was affirmed by the U.S. Court of Appeals for the Federal Circuit. After resolution of the appeal, the district court dismissed Mutual’s counterclaims alleging that Tyco’s patent claims and its efforts to persuade the FDA to prohibit Mutual from marketing its generic drug violated the antitrust laws.

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