Antitrust Law Daily Wrap Up, WORTH NOTING—Other Antitrust and Trade Regulation developments, (Jun 15, 2016)

A periodic roundup of other items of interest to the Antitrust and Trade Regulation community:

ANTITRUST—D. Del. Wireless technology company InterDigital, Inc. failed to present the exceptional circumstances required to justify an interlocutory appeal of a decision finding that Microsoft Mobile Inc. sufficiently alleged that InterDigital engaged in unlawful monopolization with regard to its standard-essential patented technology incorporated in 3G and 4G standards, the federal district court in Wilmington, Delaware, has concluded. Interdigital asked the court to certify two questions for interlocutory appeal: (1) whether a complaint alleging monopolization attributable to an allegedly false promise to license standards-essential patents on FRAND terms stated a claim under Sherman Act Section 2 without identification of any patent that is, in fact, essential to a standard; and (2) whether a complaint alleging monopolization based on alleged abuse of standards-essential patents was barred by the Noerr-Pennington doctrine when the complaint relies on non-sham patent enforcement conduct as the primary cause of the alleged antitrust violation. However, neither basis—if appealed immediately—would materially advance the ultimate termination of the litigation (Microsoft Mobile Inc. v. Interdigital, Inc., June 13, 2016, Andrews, R.).

ANTITRUST NEWS. Senate Judiciary Committee leaders have introduced new legislation that would create causes of action for anticompetitive practices by brand-name drug companies that delay the entry of generic drugs and biosimilar biological products into the market. The legislation, called "The Creating and Restoring Equal Access to Equivalent Samples Act of 2016" or "CREATES Act of 2016," attempts to eradicate two delay tactics, according to a statement released by Senator Patrick Leahy (D-Vt.), including withholding of drug samples that generic manufacturers need to gain regulatory approval and refusing to negotiate a shared safety protocol with potential generic competitors. The Senate Judiciary Committee will be holding a hearing on June 21 to discuss the proposed legislation.

CONSUMER PROTECTION NEWS. The FTC released a report today, entitled "Combating Fraud in African American and Latino Communities: The FTC’s Comprehensive Strategic Plan," which sets forth the Commission’s approach to reduce fraud in African American and Latino communities. In particular, the report outlines the FTC’s: (1) fraud prevention strategies to help individuals recognize frauds before they lose money; (2) law enforcement strategies, which includes continuing to shut down frauds and investigating the extent FTC actions protect African American and Latino communities; and (3) consumer outreach and education strategies, designed to build on lessons learned to maximize the availability and accessibility of the FTC’s education materials to African American and Latino communities. The Commission is hosting a workshop on December 6, 2016—bringing together researchers, legal services organizations, and other groups that serve the African American and Latino communities, as well as state and federal law enforcers—to examine how the demographics of the United States will continue to change and how these changes will continue to affect the Commission’s fraud prevention work.

Attorneys: Francis Digiovanni (Drinker Biddle & Reath LLP) for Microsoft Mobile, Inc. Eve H. Ormerod (Smith, Katzenstein, & Jenkins LLP) for Interdigital, Inc.

Companies: Microsoft Mobile, Inc.; Interdigital, Inc.

News: Antitrust ConsumerProtection FederalTradeCommissionNews DelawareNews