FTC Targets Patent Application Acquisitions in Biologic Drug Markets

Amgen's acquisition of Roche's pending patent applications for Enbrel, a top-selling biologic drug in the US, has sparked antitrust scrutiny from the Federal Trade Commission (FTC). The FTC argues that this deal is an example of how companies can use private commercial agreements to acquire exclusionary power and block competitors.

The FTC's amicus brief in CareFirst v. Amgen suggests that patent applications carry real exclusionary power, allowing a monopolist to shape the scope of the eventual patent and increase its monopoly. The Commission argues that the Noerr-Pennington doctrine does not protect private commercial deals, only government-petitioning activity.

The FTC's decision to intervene in this case sends a signal to life sciences companies that patent application acquisitions will be subject to antitrust scrutiny. Companies that rely on acquiring third-party patent applications to fortify a branded drug's lifecycle should expect heightened scrutiny of these deals.