“The Seventh Circuit’s decision is a victory for free enterprise and a defeat for the plaintiffs’ bar’s attempts at stifling innovation.”

—John Masslon, WLF Senior Litigation Counsel

WASHINGTON, DC—The U.S. Court of Appeals for the Seventh Circuit yesterday rejected two novel antitrust theories advanced by the plaintiffs’ bar. The unanimous ruling was a victory for Washington Legal Foundation, which filed an amicus curiae brief urging the court to affirm the lower court’s order dismissing the plaintiffs’ claims.

The plaintiffs sued AbbVie and several biosimilar manufacturers alleging Sherman Act violations. AbbVie had sued the biosimilar manufacturers in the U.S. and Europe for infringing its Humira patents. The parties’ settlements allowed the biosimilar manufacturers to enter the market before AbbVie’s patents expired. The plaintiffs argued this early entry violated Section 1 of the Sherman Act. They also claimed that AbbVie engaged in monopolization by asserting its patent portfolio against the biosimilar manufacturers.

As WLF’s brief showed, imposing antitrust liability for settling patent disputes would be disastrous for both patent law and antitrust law. It would mean that funds used to engage in important medical research would be diverted to the plaintiffs’ bar. The same is true if Section 2 liability were imposed for asserting patent rights; companies would quit innovating. Judge Easterbrook, the most respected federal judge on antitrust and economic issues, recognized this in his opinion for the court.

Celebrating its 45th year, WLF is America’s premier public-interest law firm and policy center advocating for free-market principles, limited government, individual liberty, and the rule of law.