FTC Warns Patent-Right Acquisitions Can't Escape Antitrust Review

The Federal Trade Commission (FTC) has filed an amicus brief in the case of CareFirst of Maryland v. Amgen Inc., urging a federal appeals court to preserve antitrust scrutiny of Amgen's acquisition of patent rights connected to Enbrel, a biologic medicine used to treat rheumatoid arthritis.

The FTC argues that private intellectual-property transactions do not become immune from competition law simply because they later lead to patent applications or litigation. The agency draws a line between a private commercial transaction and the government-directed activity that may follow it, stating that negotiating and acquiring intellectual-property rights from another private party is a separate commercial act.

The dispute centers on Enbrel, with CareFirst alleging that Amgen obtained exclusive rights to pending patent applications from Roche, shaped the resulting claims to cover Enbrel, and used those rights to prevent competing products from entering the market. The FTC notes that this transaction allegedly helped extend Amgen's exclusivity over Enbrel by approximately 15 years.