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Home > IPLJ > Vol. XXXIII > No. 3 (2023)

 

Anna Zhou

Abstract

A biologic patent thicket occurs when a pharmaceutical company acquires a “dense web” of patents and other intellectual property rights regarding a specific product. While applying for multiple patents is permissible, the resulting protections can have antitrust implications. In an industry like biologics, where companies can acquire patent exclusivity and regulatory exclusivity over their products, the process of continuously accumulating these exclusivities seems to be an attempt to keep biosimilars at bay. Keeping competitors out of the market drives up prices and raises questions about how these regulatory and patent pathways are being used.

Recent class action litigation in the Northern District of Illinois, In re: Humira (Adalimumab) Antitrust Litigation, challenged AbbVie’s patent thicket surrounding Humira. This case tried to posit a novel approach to addressing patent thickets using the sham exception to Noerr-Pennington. While the Seventh Circuit affirmed the district court’s opinion in Mayor of Baltimore v. AbbVie, Inc., this Note aims to explore the intersection of antitrust and patent law regarding patent thickets and addresses the use of antitrust law remedies to patent thickets. This Note further argues that, in a case like In re: Humira, the sham exception to Noerr-Pennington should apply, and that courts should consider patent thickets in two ways. First, courts should look at the value of a patent, and when the value is worth less than the cost of prosecuting that patent, the patent should be considered objectively baseless under the Professional Real Estate Investors test. Secondly, courts should adopt a more flexible approach when considering a sequence of petitions, like a sequence of accumulated patents, as part of antitrust analysis.

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