FTC v. Schering-Plough Petition

As previously mentioned, the FTC's petition to the SCOTUS, appealing the 11th Cir decision in the Schering K-Dur case, is now available online.

Interesting note: this is only the 3rd time the FTC is representing itself before the SCOTUS. See n.1.

Welcome Prof Lydia Loren to the Blawgosphere!

Thanks to Prof Smith at the Conglomerate for pointing out Prof Lydia Loren's new blog, LC CyberBlog. She will be teaching a CyberLaw course at Lewis and Clark this semester.

Pearlstein's "Activist" Republican Judges

Steven Pearlstein at the Washington Post has an interesting take on the recent K-Dur drug case decision by the U.S. Court of Appeals in Atlanta.

Although Schering-Plough is headquartered in New Jersey and Upsher in Minnesota, they filed their case with the conservative appeals court in Atlanta -- a blatant example of forum shopping for which plaintiffs' lawyers are often criticized. As it happened, they were lucky enough to draw an all-Republican panel of judges headed by Peter T. Fay, a Nixon appointee and one of the three judges who authorized Ken Starr to continue his witch hunt against Bill Clinton even after the Senate impeachment trial.
***
Fay's idea of striking a "delicate balance" between patent and antitrust law was to decree that drug companies are free to engage in any anticompetitive behavior they like until their patents expire.

In a final, tortured bit of legal logic, Fay even argued that non-compete arrangements actually increase competition by creating an environment of "legal certainty" that encourages investment -- a loony proposition for which he offered no evidence, and which was explicitly contradicted by an FTC staff study.

The case is Schering-Plough Corp. v. F.T.C., 402 F.3d 1056 (11th Cir. 2005).

Before taking the patent bar...

Something to consider if you're just starting (or already in) law school and thinking of taking the patent bar: at least one of our patent law/prosecution professors grades on a separate curve for registered patent agents (much like LLMs). You might be at a disadvantage if you crammed and passed the patent bar over the summer hoping to coast thru a patent law or prosecution course the following year.

Law 6205 Fall 2005: This course will be a blend of graded drafting exercises and case law study. The exercises will necessitate a waiver of anonymity by students for grading in this course. Students who are registered patent agents as of the last day of classes will be graded on a separate curve, similar to the situation with LLM students

See also "If you KNOW you want to be a patent attorney"

Illinois Tool Works v. Independent Ink

Dennis Crouch at the Patently-O blog is summarizing the amici briefs filed on this case before the Supreme Court this fall.

QUESTION PRESENTED
Whether, in an action under Section 1 of the Sherman Act, 15 U.S.C. § 1, alleging that the defendant engaged in unlawful tying by conditioning a patent license on the licensee's purchase of a non-patented good, the plaintiff must prove as part of its affirmative case that the defendant possessed market power in the relevant market for the tying product, or market power instead is presumed based solely on the existence of the patent on the tying product.

The ABA also filed an amicus brief in support of petitioners May 2005 version available here.

[UPDATE] Some more useful links:

• AIPLA amicus brief on the merits
• Federal Circuit opinion in this case
• Jim DeLong @ PFF's IPCentral blog has more on this case and others in the antitrust archive
• Prof Greg Vetter has a summary of the Federal Circuit's opinion available here
• SCOTUS Docket link

[/UPDATE]

Where's TLG?

The mysterious Blawg Review editor setup a Google Map for everyone to post their locations and it's pretty neat. You've got to zoom in to street level to place yourself accurately, but the response time is pretty good on a broadband connection. This ought to come in handy for a few things...

Happy Anniversary

Today is my TLG blog's anniversary and I promised myself I wouldn't get too sentimental about it, but it's hard not to look back over the year's posts and wonder whether I am the same person who started this a year ago.

Being a part-time 2L turned out to be even more challenging than my 1L year. I feel like I've crossed the Rubicon between being a technology consultant to legal counsel - but I'm not a lawyer yet! I have decided to avoid another difficult summer session by taking a full-time courseload this year. I thought I might be eager to see the light at the end of the tunnel, but graduation really just marks the start of another phase in this lifelong learning process.

Different people, news, and events have taken on new meanings and significance. The changes can sometimes be nerve-wracking, but they have mostly been quite enjoyable. I hope that by this time next year I'll be able to reminisce on the whole law school & bar exam experience while looking forward to the start of my post-graduation life...

In the meantime, I need to get past these summer finals! Good luck to the rest of the summer students out there