By Lawrence Hurley
WASHINGTON (Reuters) - The Obama administration's top
advocate before the U.S. Supreme Court is highlighting antitrust
and patent cases as among the most important business cases the
justices are considering this term.
Solicitor General Donald Verrilli, asked to speak about some
of the main business cases this term, focused during an event on
Friday at Georgetown Law Center in Washington on four cases, two
antitrust and two relating to patents.
In the antitrust arena, he cited two cases brought before
the court by the U.S. Federal Trade Commission: FTC v. Phoebe
Putney Health System, which was decided in February, and FTC v.
Actavis, which will be argued on March 25.
In the first case, the court ruled 9-0 in the government's
favor, finding that a local hospital authority in Georgia was
not immune from federal antitrust laws.
Verrilli said the significance of the case was that an
entity seeking enforcement of antitrust laws, in this instance
the FTC, "actually won" in the Supreme Court, which he indicated
was relatively unusual.
The second antitrust case concerns so-called "pay-for-delay"
deals in which brand-name pharmaceutical companies settle patent
litigation by paying generic manufacturers not to bring cheaper
drugs on the market until a later date.
The Obama administration argues that such deals should be
considered "presumptively unlawful" unless the companies can
Verrilli said the case was a tough one for the justices
because they have to come up with guidance for lower courts that
would distinguish between different scenarios without requiring
"full-blown patent litigation" in an antitrust context.
The two key patent cases Verrilli addressed are Bowman v.
Monsanto, on the subject of when patent protections for
genetically modified seeds expire, and Association for Molecular
Pathology v. Myriad, on the question of whether human genes can
Bowman was argued in February and Myriad will come before
the justices in April. All of the cases are due to be decided
before the end of June, when the term ends.
The gene case is one that might have "captured a lot of the
public imagination" if the court wasn't also considering such
hot-button issues as gay marriage and voting rights this term,
In the case, the Obama administration has argued that patent
rights do not expire when a farmer seeks to plant a crop using a
second generation of patented seed.
Otherwise, "there wouldn't be much left of the patent,"
That the justices have taken up these and other patent cases
in recent years shows that the court is increasingly interested
in patent law, he said.
Paul Clement, a solicitor general under former president
George W. Bush who also appeared at the event, agreed, noting
that the Supreme Court was now "not overly deferential, to say
the least," to the U.S. Court of Appeals for the Federal
Circuit, which hears most patent disputes.
In the past, the high court was less likely to review the
appeals court's decisions, he said.
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