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The Federal Trade Commission filed an amicus brief with the U.S. Court of Appeals for the First Circuit urging the court to reverse the district court’s dismissal of the complaint in Amphastar Pharmaceuticals, Inc. v. Momenta Pharmaceuticals, Inc.

The amicus brief explains that the district court’s basis for dismissing the complaint, the Noerr–Pennington doctrine, was erroneously applied. Under that doctrine, private entities are exempt from liability under the antitrust laws for attempts to influence the passage or enforcement of laws, even if the laws they advocate for would have anticompetitive effects. The brief argues that the district court did not identify any direct petitioning of a government entity, and that even if defendants’ conduct were viewed as indirect petitioning, the district court should have considered whether the plaintiffs’ allegations of deception vitiate Noerr protection. The brief also argues that there is no merit to the defendants’ claim that Noerr protects their conduct because the plaintiffs’ injuries resulted from a subsequent patent infringement suit.

The defendants in this case allegedly deceived the private standard setting organization United States Pharmacopeial Convention, or USP, into adopting a pharmaceutical testing standard without revealing that they held patent rights covering the standard, which is known as the 207 Method. The defendants then sued the plaintiffs, a rival manufacturer, for patent infringement. The plaintiffs then sued for antitrust violations. The drug at issue is enoxaparin, an anticoagulant marketed under the brand name Lovenox.

The FTC vote approving the amicus brief filing was 3-0. It was filed with the U.S. Court of Appeals for the First Circuit on November 7, 2016. (FTC File No P082105; the staff contact is Imad Abyad, Office of the General Counsel, 202-326-3579.)

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