By David Scupp

The antitrust battle between the NCAA and its former players over the use of their names and likenesses might finally be coming to a head.

Last Friday, Judge Claudia Wilken of the U.S. District Court for the Northern District of California ordered the NCAA to engage in settlement talks in the class action case of In Re NCAA Student-Athlete Name and Likeness Licensing Litigation, with the class representatives, who claim that the NCAA and its member schools illegally conspired to prevent players from earning compensation from the licensing of their name and likeness rights.

This order comes on the heels of a summary judgment hearing on February 20, 2014, when Judge Wilken stated in no uncertain terms that “[t]he whole case is not going away on summary judgment.”  That means that, barring successful settlement negotiations, the case is very likely to go to trial.  A trial date has been set for June 9, 2014, in Oakland, and is slated to last 19 days.

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By Seth D. Greenstein

On Friday, the Supreme Court granted certiorari in American Broadcasting Companies v. Aereo, Inc. (“Aereo”), the case that is now slated to decide the question of whether a company “publicly performs” a copyrighted television program by providing consumers a technology to receive and record a broadcast of that program via antenna and then transmit that recording to themselves over the internet.

To Supreme Court mavens, certiorari seemed unlikely under the Court’s rules.  There is no split of opinion among the federal circuit courts of appeals over the legality of Aereo’s business model.  Although broadcasters have sued Aereo in multiple jurisdictions, courts have denied the broadcasters’ requests for a preliminary injunction.  It is debatable whether the case involves a question of exceptional importance, given that Aereo is a small company and the courts disagree as to whether Aereo’s business might cause multibillion dollar networks irreparable harm.

But the unconventional Aereo took an unlikely step after broadcasters sought Supreme Court review of Aereo’s victory in WNET v. Aereo, Inc., 712 F.3d 676 (2d Cir. 2013), in which the U.S. Court of  Appeals for the Second Circuit affirmed the district court’s denial of broadcasters’ motion for a preliminary injunction seeking to bar Aereo consumers from accessing recorded broadcast television programs while the programs are airing on broadcast television.  Aereo responded to the petition for certiorari by agreeing that the Court should take the case.  As Aereo observed, although it has thus far prevailed in litigation, it continues to be sued whenever it launches in a new city.  Certiorari was needed, Aereo told the Court, to stop the war of attrition that threatened both Aereo and, in its view, all modern technology systems that store and give consumers access to their content in the internet “cloud.”  click here for more »

By Jeffrey I. Shinder

As Congress contemplates passing comprehensive legislation to deal with patent trolls, an intriguing antitrust case involving a defensive patent aggregator—an entity created to deal with such trolls—will proceed in federal court in San Francisco.

The case, Cascades Computer Innovation LLC v. RPX Corporation in the U.S. District Court for the Northern District of California, was brought by Cascades, a so-called patent troll, or non-practicing entity, which is an entity that enforces patent rights against accused infringers in an attempt to collect licensing fees, but does not manufacture products or supply services based on those patents.

Cascades controls a portfolio of patents that include a patent that allegedly enhances the efficiency of the Android operating systems.  Cascades claims that the defendants, HTC Corporation, Motorola Mobility Holdings, Inc, and Samsung Electronics Co. Ltd agreed that none of them would deal with Cascades individually.  According to Cascades, the defendants instead agreed to negotiate any and all licenses with Cascades through their entity, RPX Corporation.  Cascades claims that this agreement is an unlawful conspiracy to create a buyers’ monopoly—a monopsony—in the market for Cascades’ licenses in violation of Section 1 and 2 of the Sherman Act.  click here for more »

Judge Barbara B. Crabb of the Western District of Wisconsin has granted Motorola Mobility Inc. partial summary judgment on antitrust counterclaims that Apple Inc. has been asserting against Motorola in the patent infringement case of Apple Inc. v. Motorola Mobility Inc.

The case stems from Apple’s release of the iPhone in 2005 without first seeking a license for the use of 3G technology developed and patented by Motorola.  Motorola proposed a patent license but, according to Apple, a high royalty rate kept Apple from signing an agreement.  

Motorola also terminated agreements it made with Qualcomm Inc., the company providing Apple with chipsets used to connect iPhones to cellular networks.  When Apple continued to sell those phones, Motorola filed the patent infringement lawsuit.

In response, Apple claimed Motorola’s actions were a violation of the Sherman Act.  According to Apple, Motorola’s high license fees and alleged interference with the Qualcomm agreement prevented fair and timely use of the 3G technology.

Apple said Motorola’s actions were especially of concern because the technology in Motorola’s patents has been deemed essential to set standards for other companies industry wide, by the European Telecommunications Standards Institute.

Judge Crabb rejected the antitrust claims because Apple – which continued to sell its popular iPhones – never suffered from an increase in costs or loss of its market share, indicating that it had not suffered any antitrust injury.

The court also reasoned that Motorola did not violate antitrust law by bringing a patent infringement action against Apple because Motorola has a First Amendment right to petition the courts for relief and the litigation was not objectively baseless.

Although the ruling removes the threat of antitrust liability, Motorola still faces Apple’s counterclaims that Motorola failed to grant patent licenses for 3G smartphone technology in a timely and nondiscriminatory manner in violation of its obligation to offer licensing under “Fair, Reasonable and Nondiscriminatory” terms (“FRAND”).   Judge Crabb agreed that Apple benefits from Motorola’s essential patents and therefore has a stake in enforcing Motorola’s promise to abide by ETSI’s intellectual property licensing rules which “protect companies that need to obtain licenses in order to practice the standards adopted by the organizations.”

The U.S. Court of Appeals for the Third Circuit has reversed summary judgment in In re K-Dur Antitrust Litigation, and resurrected claims against defendant drug manufacturers that entered into so-called “reverse-payment” or “pay-for-delay” patent litigation settlements that allegedly delayed the sale of generic drugs.

The Third Circuit held that settlement agreements in which patent holders make payments to settle patent infringement litigation against generic manufacturers may be unreasonable restraints on trade and unenforceable under federal antitrust laws.  The Third Circuit remanded the case to the district court “to apply a quick look rule of reason analysis based on the economic realities of reverse payment settlements rather than the labels applied by the settling parties.”  This is essentially the approach urged by the Federal Trade Commission (“FTC”) in its amicus brief.

The Third Circuit test will apply a stricter level of scrutiny to such settlements than the approach used by the Second, Eleventh, and Federal Circuits, which have adopted a “scope-of-the-patent” test.  Under the scope-of-the-patent test, reverse payment settlements do not violate the antitrust laws if (1) the exclusion does not exceed the patent’s scope, (2) the patent holder’s claim of infringement was not objectively baseless, and (3) the patent was not procured by fraud on the patent and trademark office.

The plaintiffs are purchasers of K-Dur 20, a sustained-release potassium chloride tablet, and include plaintiffs CVS Pharmacy, Inc., Rite Aid Corporation, and Louisiana Wholesale Drug Company, Inc.  Plaintiffs assert claims on behalf of a class of wholesalers and retailers that purchased the drug directly from defendants.

The plaintiffs are challenging settlements between Schering-Plough Corporation, the patent holder and manufacturer of K-Dur 20, and Upsher Smith Laboratories and ESI Lederle (“ESI”), which sought to market generic versions of the drug.  Per the settlements, Upsher Smith and ESI agreed not to market their generic versions until September 1, 2001, which was some years prior to the expiration of Schering-Plough’s patents.  Schering-Plough also agreed to pay Upsher Smith $60 million in royalty payments for licenses to make cholesterol drug products, and agreed to pay ESI $5 million up-front plus varying amounts depending on FDA approval of ESI’s generic.  Plaintiffs argue that the settlements were shams and that the $60 million in royalties was actually compensation for Upsher Smith’s agreement to delay entry of the generic alternative.

The Third Circuit opinion relies heavily on the goals of the 1984 Hatch-Waxman Act. That legislation was designed to facilitate generic entry and encourage generic manufacturers to challenge pharmaceutical patents. 

The FTC has long believed that reverse-payment settlements are anticompetitive because they may delay generic competition.  According to a 2010 study by the FTC, “‘Pay-for-delay’ agreements are ‘win-win’ for the companies” at the expense of consumers, who are denied the option of lower-priced generics.  The FTC report concluded that as a result of such agreements, “brand-name pharmaceutical prices stay high, and the brand and generic share the benefits of the brand’s monopoly profits.”