I INTRODUCTION

In the United States, antitrust law and intellectual property (IP) law are two complementary bodies of law, each designed to promote innovation, market competition and consumer welfare.2 However, holders of intellectual property rights (IPR) are not exempt from the application of US antitrust laws, and may not protect or enforce their rights in a manner that unfairly eliminates competition.3

Antitrust law in the United States is primarily federal law, codified in three main statutes under Title 15 of the United States Code (USC), namely: the Sherman Act, the Clayton Act and the Federal Trade Commission Act (the FTC Act).4 The Sherman Act prohibits agreements in restraint of trade and bars unilateral conduct that monopolises or constitutes an attempt to monopolise a given market.5 The Clayton Act, which governs mergers and acquisitions, prohibits mergers and acquisitions that substantially lessen competition or tend to create a monopoly.6 Finally, the FTC Act broadly prohibits the use of any unfair methods of competition and any unfair or deceptive acts or practices that affect commerce.7 In the United States, the Department of Justice (DOJ) and the Federal Trade Commission (FTC) (together, the Agencies) share jurisdiction for enforcing federal antitrust law.8

In addition to the antitrust statutes and the case law interpreting them, the DOJ and FTC have released the Antitrust Guidelines for the Licensing of Intellectual Property to help IPR holders comply with their antitrust obligations when licensing IP (the Guidelines). In January 2017, the Agencies released an update to their original Guidelines, published in 1995, which included recent precedent cases and incorporated certain sections of the 2010 Horizontal Merger Guidelines.9 The 2017 Guidelines, like the original 1995 Guidelines, emphasise three main principles: (1) for antitrust purposes, the Agencies apply the same framework for analysing IP as they do for tangible property; (2) an IP right does not by itself confer market power on its recipient, within the meaning of antitrust law; and (3) licensing IP can enable firms to achieve more efficient production and is generally viewed as pro-competitive.10 However, the updated Guidelines do not address several important and controversial topics, such as the Agencies' approach to patent assertion entities (PAEs), standard-essential patents (SEPs) and the evaluation of fair, reasonable and non-discriminatory (FRAND) terms under the antitrust laws.

The federal antitrust statutes, their associated case law and the Agencies' Guidelines are the primary resources with which practitioners who operate at the intersection of US antitrust and IP law should be familiar. This chapter provides a high-level overview of those authorities and highlights some of the key issues specific to the juncture of antitrust and intellectual property law in the United States.

II YEAR IN REVIEW

The 2017 calendar year marked the first year of President Trump's administration, and was a busy one for both the courts and the Agencies with respect to antitrust and IP matters.

In January 2017, shortly before President Trump's inauguration, the FTC filed a complaint against Qualcomm alleging that the company, the world's largest supplier of baseband processors for cellular devices, engaged in unfair competition in violation of the FTC Act by, among other things, requiring its customers to pay royalties under a licence agreement with Qualcomm before Qualcomm would agree to sell processors to device manufacturers (known as the 'no licence, no chips' policy), refusing to license SEPs to its competitors and requiring Apple to agree that it would exclusively source processors from Qualcomm in exchange for reduced royalties.11 The complaint spurred numerous follow-on suits against Qualcomm from Samsung, Intel and others. In June 2017, the court denied Qualcomm's motion to dismiss the FTC's complaint, holding that the FTC adequately alleged that: (1) the 'no licence no chips' policy forced Qualcomm's device manufacturer customers to pay above-FRAND rates and harmed competition; (2) Qualcomm, under the facts alleged, had an antitrust duty to license its patents to its chip-manufacturing competitors; and (3) Qualcomm's exclusive dealing arrangements with Apple violated the Sherman and FTC Acts.12

Subsequent to the inauguration, the president nominated a new head of the DOJ's antitrust division and a new FTC chairman. Assistant Attorney General Delrahim at the DOJ has repeatedly commented that antitrust policy in the Agencies had swung too far in favour of technology implementers; that standard-setting behaviour by patent owners can be adequately addressed under contract and fraud principles and does not implicate antitrust law; and that antitrust enforcement policy must adequately protect innovation and the legitimate interests of patent owners. In November 2017, he announced a new approach within the DOJ for SEPs that the patent owner has committed to license on FRAND terms, stating that: (1) FRAND is not a compulsory licensing scheme; (2) unilateral refusals to license should be per se lawful; (3) patent 'holdout' by implementers is a more serious problem than 'holdup' by patent owners; and (4) standards-setting organisation (SSO) rules that 'skew the bargain in the direction of implementers warrant a close look to determine whether they are the product of collusive behavior'.13 The position of recently affirmed FTC chair Joseph Simons on these matters is not yet known. Notably, however, as director of the FTC Bureau of Competition during the G W Bush administration, he oversaw a number of enforcement actions against patent owners involved in SSO proceedings, including an action against Rambus Inc.14

In December 2017, a district court in California Issued a long-awaited decision determining worldwide FRAND royalty rates for a wireless SEP portfolio. The court used both a 'top-down' patent counting approach, and an analysis of the patent owner's comparable licences, to determine FRAND royalty rates for its portfolio of more than 100 patent families essential to one or more of the 2G, 3G or 4G wireless standards. The top-down approach generally attempts to determine the value to the accused device of the universe of all SEPs and then asks what share of that total value the patent owner should obtain as a result of its numerical share of all SEPs. After determining the FRAND rate, the court held that while the patent owner's prior offers to the potential licensee were not FRAND, it had not negotiated in bad faith, and the court refrained from ruling whether the patent owner had been obliged by its FRAND declarations to the relevant SSO to offer a FRAND rate from the start of licence negotiations.15

The courts were also busy in 2017 with a number of decisions revamping the contours of US patent law with implications for cases also raising competition issues. The Supreme Court was particularly active, issuing decisions that: (1) upended 30 years of patent venue law and restricted patent owners to filing suit only where the defendant is incorporated or has a substantial place of business;16 (2) eliminated laches (unreasonable, prejudicial delay in filing suit) as a defence to patent infringement;17 and (3) held that any authorised sale of a patented product, foreign or domestic, 'exhausts' the patent owner's rights, and overturned long-standing precedent that had allowed patent owners to preserve rights through otherwise lawful post-sale restrictions.18

Finally, the United States Court of Appeals for the Federal Circuit, the first line of appeal for patent cases in the US, issued decisions cutting back on the ability of the US Patent and Trademark Office to invalidate previously issued patents through the agency's inter partes review procedure, which has been described as a patent 'death squad'.19

III LICENSING AND ANTITRUST

Licensing intellectual property can help lead to efficient combinations of inputs and thereby benefit both licensees and consumers, who gain access to new products and less costly goods and services.20 Notwithstanding its pro-competitive virtues, the process of licensing intellectual property can, however, also be exploited to harm competition; for instance, by eliminating actual or potential competitors who would have existed if not for a restrictive licensing arrangement.21 While the Agencies and courts have held that a firm's unilateral refusal to license IP to a competitor is not by itself a violation of the antitrust laws (noting that such a rule could sharply diminish the incentives firms have to invest in ex ante research and development), IPR holders are not exempt from the application of the antitrust laws and thus must avoid engaging in conduct that may have anticompetitive effects.22

As noted, the DOJ and FTC issued a modest refresh to their original Guidelines in early 2017 to reflect intervening developments in statutory and case law.23 The Guidelines emphasise that, in evaluating licensing agreements, the Agencies adopt an effects-based framework with a focus on the actual or likely effects the licence will have on competition.24 Since licensing is generally viewed as pro-competitive, most restrictions in licensing arrangements are evaluated under the 'rule of reason' (simplified, a balancing between the pro-competitive and anticompetitive effects of the alleged conduct)25 rather than the 'per se' rule (under which the conduct at issue is deemed anticompetitive without proof that the conduct had an adverse effect on competition). Perhaps the most notable change in the 2017 Guidelines was to reflect the Supreme Court's June 2007 holding in Leegin Creative Leather Products v. PSKS that minimum resale price maintenance, the practice of setting a minimum price at which a good can be resold, is not per se illegal (as had been reflected in the 1995 Guidelines), but must instead be analysed under the rule of reason.26

The 2017 Guidelines also clarified the parameters of the antitrust 'safety zone', a doctrine intended to aid business planning. The safety zone provides that, in the absence of 'extraordinary circumstances', the Agencies will not challenge a restraint contained in an IP licence provided (1) the restraint is not anticompetitive on its face (for instance, one that facilitates price-fixing or output restrictions), and (2) the licensor and the licensee's combined shares for the relevant affected market is below 20 per cent.27 Practitioners should be aware that, while particular licence conditions or restraints may not necessarily run afoul of the antitrust laws, these licence provisions must also be evaluated under other doctrines such as the judicial doctrine (in the case of patents) or the statutory provisions (in the case of copyright) governing exhaustion.

IV STANDARD-ESSENTIAL PATENTS

Collaboratively setting standards for technologies is important to a variety of industries, as the practice facilitates the creation of follow-on inventions while promoting future innovation and interoperability of products.28 However, standard setting may also raise antitrust issues, such as when a patent gains additional market power when the patented technology becomes adopted as part of an industry standard and the patent becomes an SEP. In such an event, the patent's value may increase because it can be used to block implementation of the standard, and the patent owner may attempt to exploit this newly acquired leverage by refusing to license the standard-essential technology unless licensees agree to excessively high royalties (a practice commonly referred to as 'patent holdup').29 In essence, the adoption of patented technology into a standard may confer market power on the patent holder that would otherwise not have existed, and that market power may then be abused if not constrained. If many holders of SEPs engage in patent holdup, the aggregate royalties for patents essential to a given standard may actually be greater than the value of the actual feature, or indeed the product incorporating the feature.30

In response to these issues, and to minimise exploitative licensing, many SSOs ask that patent holders who wish to have their technology considered for incorporation into the industry standard voluntarily pledge to license their patents on FRAND terms. FRAND commitments serve several salutary purposes: linking patent holders with those who incorporate and implement patented technologies; ensuring royalties more closely reflect the actual value of the patent by minimising the surplus attributable solely to adoption of the patented technology into the standard; and incentivising patent holders to put forth their best technology to be standardised. Of course, SSO participation is voluntary and SSO FRAND principles address only the constraints on participating patentees. Other doctrines, including the fact that the patent statute allows for damages in an amount of a 'reasonable' royalty, have been used to curtail royalty demands based on factors other than the actual value of the patented technology to the allegedly infringing device.

SSOs typically do not 'set' a FRAND rate or other terms. In most cases, the SEP holder and licensee attempt to agree on what would constitute FRAND terms and then execute a licence agreement reflecting those terms after successful negotiations. However, the FRAND commitment to the SSO generally is considered a binding commitment that runs with the patent, and may be enforced by a prospective licensee as a third-party beneficiary of the SSO commitment. A breach of a commitment to license on FRAND terms may constitute grounds for an antitrust suit by one injured as a result of the breach. When it comes to policing compliance with FRAND commitments, US antitrust law operates more as a backstop than a primary check on SEP licensing, with the Agencies primarily acting as competition advocates that assist SSOs through a variety of Agency programmes to craft clear guidance for patent holders. Indeed, the Agencies generally refrain from intervention in private licence negotiations unless a patent holder's failure to honour its FRAND commitment is deliberate and rises to the level of an antitrust violation under Section 2 of the Sherman Act.31 Indeed, former Assistant Attorney General Bill Baer in a September 2015 speech at the 19th Annual International Bar Association Competition Conference emphasised that the Agencies, in line with their European counterparts, will not intervene in basic commercial disputes over royalty rates in the absence of bad conduct by the patent holder or improper use of market power.32

Exactly what 'fair, reasonable and non-discriminatory' means in the licensing context, however, remains sometimes controversial and largely unsettled. Although jurists and agencies in Europe have been more active in defining both what constitutes a FRAND rate and the process parties should engage in to get there,33 currently there is less guidance in the United States. While several district courts – most recently in the 2017 TCL decision34 – and one appellate court have directly addressed the issue, determinations of FRAND terms are highly fact-specific and may vary widely depending on the patents, standards and products at issue. Thus, the Agencies have been mostly silent on what specifically constitutes FRAND licensing, and the courts have avoided applying bright-line tests. Instead, US courts defining FRAND have considered the rates in 'comparable' licences for similar technologies and patents, the rates for patent pools with respect to standards, the objective value of the patent to the standard, the availability of alternatives and their quality, whether the patent covers the core features of the standard, the possibility of royalty stacking and the number of essential patents that may read on a particular standard.

In 2015, the US Court of Appeals for the Federal Circuit decided Commonwealth Science and Industry Research Organisation (CSIRO ) v. Cisco Systems, a case involving certain technologies incorporated into the IEEE 802.11 Wi-Fi standard.35 The Federal Circuit held that, while the smallest saleable patent-practising unit is one appropriate base for calculating damages, it is not the exclusive method for apportioning the value of a patent to the allegedly infringing product, especially if the record indicates that the parties actually negotiated a different base in reality.36 The CSIRO decision also emphasised that, in determining whether a given royalty is excessive, the actual cumulative royalty paid by the implementer must be proven and the implementer may not rely on abstract recitations alleging royalty stacking or qualitative assertions of the value of inventions without some quantitative evidence.37 The CSIRO decision's focus on actual quantitative evidence is thus consistent with the Federal Circuit's 2014 decision in Ericsson v. D-Link. D-Link involved the adjudication of whether Ericsson had complied with its obligation to license a patent essential to the IEEE 802.11 Wi-Fi standard on FRAND terms, and held that in determining FRAND damages, concerns about patent holdup must be proven using specific facts from the case, rather than on the basis of theory or general probability.38

V INTELLECTUAL PROPERTY AND MERGERS

In the United States, all mergers and acquisitions, whether or not they involve transfers of IP rights, must comply with Section 7 of the Clayton Act, which prohibits mergers and acquisitions that substantially lessen competition or tend to create a monopoly.39 In addition, practitioners need to be aware that certain transactions that exceed a certain minimum dollar amount in value must be reported to the FTC and the Antitrust Division of the DOJ before consummation, pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the HSR Act).40 The HSR Act establishes a waiting period before acquisitions that exceed the threshold may close to give the Agencies sufficient time to scrutinise more closely mergers of a certain size.

Furthermore, the 2017 Guidelines state the Agencies' position that complete sales of intellectual property rights and transfers of exclusive IP licences will be treated as analogous to mergers and thus are subject to the guidance contained in the 2010 Horizontal Merger Guidelines (another DOJ and FTC joint release).41 Importantly, such 'mergers' will not be eligible for treatment under the safety zone for licensing restraints set out in Section 4.3 of the 2017 Guidelines.

As for substantive evaluations of acquisitions, the 2017 Guidelines again emphasise that in evaluating conduct, the Agencies adopt an effects-based framework with a focus on the actual or likely effects on competition and not the potential harms to any individual competitor. For example, the Agencies have approved certain acquisitions subject to certain conditions aimed at restoring the competition eliminated as a result of the transaction, such as requiring the acquirer to agree to divest certain IP rights. In March 2009, in connection with the 2007 acquisition of Wild Oats by Whole Foods, the FTC agreed to a settlement with Whole Foods that required Whole Foods to sell 32 Wild Oats stores and divest related Wild Oats IP, such as the rights to the Wild Oats brand.42 Similarly, in July 2016, the DOJ agreed to a settlement with Anheuser-Busch InBev (ABI) as part of ABI's acquisition of SABMiller, requiring ABI to, among other things, divest itself of SABMiller's US business and the worldwide brand rights to Miller beer.43

VI OTHER ABUSES

Sham litigation and pay-for-delay cases in the pharmaceutical industry continued to gain the attention of the Agencies and courts in 2017. Given the different marketing approval processes for brand-name and generic drugs in the United States, brand-name drug manufacturers have a government-granted monopoly in the market for their drug until a generic competitor is eligible to receive FDA approval and actually receives it. Both private parties and the Agencies have alleged that certain brand-name drug companies from time to time seek to limit the onset of generic competition; for example, by offering generic competitors payments to delay filing their Abbreviated New Drug Application for their generic (reverse payments) or by filing sham patent infringement lawsuits and citizen petitions in an effort to delay the onset of generic competition.44

In March 2016, the FTC filed a complaint against Endo Pharmaceuticals Inc and others, alleging the companies violated antitrust laws on a pay-for-delay theory, which had the effect of blocking consumers' access to lower-cost generics.45 Specifically, the complaint alleges that Endo not only paid Impax Laboratories and Watson Laboratories – which market Opana ER and Lidoderm respectively – not to file for FDA approval of their generic equivalents, but also agreed as consideration not to market their own generic (known as an authorised generic, or AG) to compete with Opana and Lidoderm, once the generic versions finally did hit the market.46 The case was notable not only because Impax and Watson were the first generic companies to file for marketing approval, but also because it marked the first time the FTC has sought to challenge a 'no-AG commitment' as an anticompetitive reverse payment.47 In early 2017, the FTC settled the case against Endo with a consent judgment prohibiting Endo from engaging in similar conduct in the future, but it has maintained the cases against Ipax and Watson.48

As a general matter, any payments to generic manufacturers by brand-name producers are evaluated under the rule of reason because this conduct can have pro-competitive effects.49 While petitioning the government to enforce one's patents is generally considered to be 'speech', protected by the US Constitution under the Noerr–Pennington doctrine, infringement litigation can lose this protection and become subject to antitrust scrutiny when the asserted patents are obtained by fraud, or the litigation claims are objectively baseless and asserted to protect a monopoly.50

VII OUTLOOK AND CONCLUSIONS

While still too early for a definitive conclusion, it appears that the election of Donald Trump has led to the possibility of a more favourable position than previous administrations toward patent holders.

Globally, the trend in recent years towards harmonisation of competition laws as they are applied to IP has continued, with new focus on the meaning and consequences of the patent owner's FRAND commitment by courts in the US, UK, Germany, Japan and China.

In the year ahead, we look forward to continued development of the law at the intersection of antitrust and IP, either through agency guidance and litigation, private litigation or both.


Footnotes

1 Garrard Beeney and Renata Hesse are partners at Sullivan & Cromwell LLP. The authors wish to acknowledge the valuable contribution to this chapter by Franklin Liu.

2 Atari Games Corp. v. Nintendo of Am., Inc., 897 F.2d 1572, 1576 (Fed. Cir. 1990); Antitrust Guidelines for the Licensing of Intellectual Property Section 1.0, Dept. of Justice and Fed. Trade Commission (2017), available at www.justice.gov/atr/IPguidelines/download (the 2017 Guidelines).

3 2017 Guidelines, Section 2.1.

5 Sherman Act, 15 U.S.C. Sections 1–2.

6 Clayton Act, 15 U.S.C. Section 18.

7 Federal Trade Commission Act (the FTC Act), 15 U.S.C. Section 45.

9 DOJ and FTC Issue Updated Antitrust Guidelines for the Licensing of Intellectual Property, Dept. of Justice, www.justice.gov/opa/pr/doj-and-ftc-issue-updated-antitrust-guidelines-licensing-
intellectual-property.

10 2017 Guidelines at 2; see Illinois Tool Works v. Independent Ink, Inc., 547 U.S. 28, 45–46 (2006).

11 Complaint, FTC v. Qualcomm Inc., No. 5:17-cv-00220 (N.D. Cal. 17 January 2017).

12 FTC v. Qualcomm Inc., No. 17-CV-00220, 2017 WL 2774406 (N.D. Cal. June 26, 2017). Following President Trump's inauguration, his new acting FTC chair Maureen Ohlhausen (who had previously been the only FTC Commissioner to vote against suing Qualcomm) stated that she was worried that the case would fuel attacks on US IP rights by antitrust agencies in Asia and elsewhere. This led to speculation that the FTC might consider settling or dropping the action, but so far it has not done so.

13 Makan Delrahim, Assistant Att'y Gen., Antitrust Div., US Dep't of Justice, Remarks at the USC Gould School of Law's Center for Transnational Law and Business Conference (10 November 2017) (the 'AAG Delrahim Speech'), available at https://www.justice.gov/opa/speech/assistant-attorney-general-makan-
delrahim-delivers-remarks-usc-gould-school-laws-center.

14 Like Assistant AG Delrahim, the acting FTC chair during the first 15 months of the Trump administration, Maureen K Ohlhausen, had publicly expressed scepticism that theories of patent 'holdup' should prompt antitrust scrutiny of SEP patent owners, and stated that contract and fraud principles, rather than antitrust policy, should govern patent enforcement in the SSO context. Maureen K Ohlhausen, The Federal Trade Comm'n's Path Ahead, 2 The Criterion J. on Innovation (2017) (remarks to the Global Competition Review's 6th Annual Antitrust Law Leaders Forum, 3 Feburary 2017); Maureen K Ohlhausen, The Elusive Role of Competition in the Standard-Setting Debate, 20 Stan. Tech. L. Rev. 93 (2017).

15 TCL Comm'n Tech. Holdings v. Telefonaktiebolaget LM Ericsson, No. SACV 14-341, 2017 WL 6611635 (C.D. Cal. Dec. 21, 2017).

16 TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S.Ct. 1514 (2017).

17 SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC, 137 S.Ct. 954 (2017).

18 Impression Prods, Inc., v. Lexmark Int'l Inc., 137 S.Ct. 1523 (2017).

19 See, e.g., Wi-Fi One, LLC v. Broadcom Corp., 878 F.3d 1364 (Fed. Cir. 2018) (allowing appeal of a broad class of patent office decisions); Aqua Prods., Inc. v. Matal, 872 F.3d 1290 (Fed. Cir. 2017) (en banc) (making it easier for a patentee to amend claims during an inter partes review to avoid invalidity); EmeraChem Holdings, LLC v. Volkswagen Group of Am., Inc., 859 F.3d 1341 (Fed. Cir. 2017) (requiring additional notice to patent owner before invalidating patent); Ultratec, Inc. v. CaptionCall, LLC, 872 F.3d 1267 (Fed. Cir. 2017) (raising bar for consideration of expert testimony to invalidate patent in inter partes review).

20 2017 Guidelines, Section 2.3.

21 United States v. Paramount Pictures, 334 U.S. 131, 144 (1948).

22 Verizon Commc'ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 407-08 (2004).

23 2017 Guidelines.

24 Id. at Section 3.1.

25 Id. at Section 3.4.

26 Id. at Section 5.2, see Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877 (2007).

27 2017 Guidelines, Section 4.3.

28 Reflections on the Role of Competition Agencies When Patents Become Essential, Assistant Attorney General Bill Baer, 11 September 2015, 19th Annual International Bar Association Competition Conference, available at www.justice.gov/opa/speech/assistant-attorney-general-bill-baer-delivers-
remarks-19th-annual-international-bar.

29 Ericsson, Inc. v. D-Link Sys., Inc., 773 F.3d 1201, 1209 (Fed. Cir. 2014).

30 Id.

31 Broadcom Corp. v. Qualcomm, Inc., 501 F.3d 297 (3d Cir. 2007). However, in Amphastar Pharms., Inc. v. Momenta Pharms., Inc., the First Circuit Court of Appeals reconfirmed that the Noerr-Pennington doctrine does not immunise conduct before an SSO from antitrust scrutiny. 850 F.3d 52, 56 (1st Cir. 2017) (citing Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492 (1988).

32 See note 31.

33 See, e.g., Unwired Planet v. Huawei, [2017] EWHC 711 (Pat) (5 April 2017) (UK); Unwired Planet v. Huawei, [2017] EWHC 711 (Pat) (5 April 2017) (Germany).

34 No. SACV 14-341, 2017 WL 6611635.

35 Commonw. Sci. and Indus. Research Organisation v. Cisco Sys., Inc., 809 F.3d 1295 (Fed Cir. 2015).

36 Id. Assistant Attorney General Delrahim has stated that '[w]hile the so-called “smallest saleable component” rule may be a useful tool among many in determining patent infringement damages for multi-component products, its use as a requirement by a concerted agreement of implementers as the exclusive determinant of patent royalties may very well warrant antitrust scrutiny'. AAG Delrahim Speech, note 13.

37 Id.

38 Ericsson v. D-Link, 773 F.3d 1201, 1234 (Fed. Cir. 2014).

39 Clayton Act, 15 U.S.C. Section 18.

40 15 U.S.C. Section 18a.

41 2017 Guidelines, Section 5.7.

42 FTC Consent Order Settles Charges that Whole Foods Acquisition of Rival Wild Oats was Anticompetitive, Fed. Trade Commission, 6 March 2009, www.ftc.gov/news-events/press-releases/2009/03/ftc-consent-order-settles-charges-whole-foods-acquisition-rival.

43 Justice Department Requires Anheuser-Busch InBev to Divest Stake in MillerCoors and Alter Beer Distributor Practices as Part of SABMiller Acquisition, 20 July 2016, www.justice.gov/opa/pr/justice-department-requires-anheuser-busch-inbev-divest-stake-millercoors-and-alter-beer.

44 See Apotex Inc. v. Acorda Therapeutics, Inc., 823 F.3d 51 (2d Cir. 2016). Former Acting FTC chair Ohlhausen has reiterated the FTC's commitment to policing pay-for-delay settlements. However, because the number of such settlements is declining, she suggested that the FTC may move resources into other potentially anticompetitive activities in the brand name/generic context, including abuse of the FDA's regulatory and ANDA approval processes. Maureen K Ohlhausen, Remarks at the ABA's Fall Forum, reported in Law360 (16 November 2017), available at https://www.law360.com/articles/986119/ftc-s-ohlhausen-sees-light-at-end-of-pay-for-delay-tunnel.

45 FTC Sues Endo Pharmaceutical Inc. and Others for Illegally Blocking Lower-Cost Generic Versions of the Branded Drugs Opana ER and Lidoderm, Federal Trade Commission Bureau of Competition, 31 March 2016, www.ftc.gov/news-events/press-releases/2016/03/ftc-sues-endo-pharmaceuticals-
inc-others-illegally-blocking-lower.

46 Id.

47 Id.

48 Endo Pharmaceuticals Inc. Agrees to Abandon Anticompetitive Pay-for-Delay Agreements to Settle FTC Charges; FTC Refiles Suits Against Generic Defendants. Federal Trade Commission Bureau of Competition, 23 January 2017, www.ftc.gov/news-events/press-releases/2017/01/endo-pharmaceuticals-
inc-agrees-abandon-anticompetitive-pay-delay.

49 FTC v. Actavis Inc., 570 U.S. 756 (2013)

50 Enforcement Perspectives on the Noerr–Pennington Doctrine: An FTC Staff Report, Fed. Trade Commission (2006), available at www.ftc.gov/sites/default/files/documents/reports/ftc-staff-report-concerning-enforcement-perspectives-noerr-pennington-doctrine/p013518enfperspectnoerr-penningtondoctrine.pdf.