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Memorandum of Law of Amicus Curiae the Federal Trade Commission in Opposition to Defendants Motion to Dismiss

By Creighton, Susan A.

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Book Id: WPLBN0000087288
Format Type: PDF eBook
File Size: 0.1 MB
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Title: Memorandum of Law of Amicus Curiae the Federal Trade Commission in Opposition to Defendants Motion to Dismiss  
Author: Creighton, Susan A.
Language: English
Subject: Trade, Import and export controls, Federal Trade Commission (U.S.)
Collections: Economics Publications Collection, Federal Trade Commission
Publication Date:
Publisher: Government Printing Office

Government Reference Publication

SUMMARY In its motion to dismiss, defendant Bristol-Myers Squibb Co. (?BMS?) asserts immunity from the antitrust laws, under Eastern R. Pres. Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961) (?Noerr?), and United Mine Workers of Am. v. Pennington, 381 U.S. 657 (1965), for its actions in filing with the Food and Drug Administration (?FDA?) information on U.S. Patent No. ,150,365 (?the ?365 patent?) for listing in the FDA?s Orange Book. In making this the basis for a motion to dismiss for failure to state a cause of action under Fed. R. Civ. P. 12(b)(6), BMS asserts that even if the allegations of the complaint are true, it enjoys antitrust immunity. In essence, BMS claims that a pharmaceutical company is at liberty, as a matter of antitrust law, to monopolize a market by means of falsely asserting to the FDA that a new patent claims its approved branded drug, despite knowing that the patent does not, in fact, claim the drug and hence does not meet the statutory criteria for listing in the Orange Book.


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