Supreme Court of California Justia
Docket No. S198616
In re Cipro Cases I & II



Filed 5/7/15



IN THE SUPREME COURT OF CALIFORNIA



IN RE CIPRO CASES I & II.

S198616

Ct.App. 4/1 D056361

San Diego County

Super. Ct. Nos.

JCCP 4154/4220

To protect competition in the marketplace, antitrust law prohibits

agreements that create or perpetuate monopolies. Patent law, in contrast, grants

temporary monopolies to inventors to encourage the development of useful

innovations. We consider here a crucial question at the intersection of these two

bodies of law: what limits, if any, does antitrust law place on the ability of a patent

holder to make agreements restricting competition during the life of its patent? In

particular, when another entity tries to invalidate a patent and enter the

marketplace, can the patentee pay the would-be competitor to withdraw its

challenge and refrain from competing until at or near the natural expiration of the

potentially invalid patent‘s life?

The answer to this is of special moment to the pharmaceutical industry,

which has seen a raft of suits in which generic drug manufacturers (generics),

seeking to introduce lower priced alternatives to patented brand-name drugs, raise

patent invalidity as a defense to claims of infringement. With increasing

frequency these cases have settled, with the plaintiff brand-name drug

manufacturer (brand) making a ―reverse payment‖ to the defendant generic in




exchange for the generic dropping its patent challenge and consenting to stay out

of the market. This case involves just such a settlement agreement.

Under federal antitrust law, these settlements are not immune from

scrutiny, even if they limit competition no more than a valid patent would have.

(Federal Trade Commission v. Actavis, Inc. (2013) 570 U.S. ___, ___ [186

L.Ed.2d 343, 356, 133 S.Ct. 2223, 2230] (Actavis).) We conclude the same is true

under state antitrust law. Some patents are valid; some are not. Sometimes

competition would infringe; sometimes it would not. Parties illegally restrain

trade when they privately agree to substitute consensual monopoly in place of

potential competition that would have followed a finding of invalidity or

noninfringement. The Court of Appeal ruled to the contrary; we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Bayer AG and Bayer Corporation (collectively Bayer) market Cipro, an

antibiotic that has been among the most-prescribed and best-selling drugs in the

world. (Arkansas Carpenters Health and Welfare Fund v. Bayer AG (2d Cir.

2010) 604 F.3d 98, 100; In re Ciprofloxacin Hydrochloride Antitrust Lit.

(E.D.N.Y. 2003) 261 F.Supp.2d 188, 194; In re Ciprofloxacin Hydrochloride

Antitrust Lit. (E.D.N.Y. 2001) 166 F.Supp.2d 740, 743.) In 1987, Bayer was

issued a United States patent on the active ingredient in Cipro, ciprofloxacin

hydrochloride, a patent that expired in December 2003. (U.S. Patent No.

4,670,444, col. 22, ll. 32-34, claim 12 (the ‘444 patent); see In re Ciprofloxacin

Hydrochloride Antitrust Lit. (Fed. Cir. 2008) 544 F.3d 1323, 1327–1328.) A

subsidiary and licensee of Bayer obtained Food and Drug Administration (FDA)

approval to market Cipro in the United States. (In re Ciprofloxacin Hydrochloride

Antitrust Lit., supra, 544 F.3d at p. 1328; In re Ciprofloxacin Hydrochloride

Antitrust Lit., supra, 166 F.Supp.2d at p. 743.) Between 1987 and 2003, Bayer

2



was the sole producer of Cipro in the United States and, between 1997 and 2003

alone, Cipro generated more than $6 billion in gross sales.

At one time, pioneer drugs like Cipro and the generic drugs that followed

them were governed by the same FDA approval process.1 Subjecting generic

drugs to the same ―cumbersome drug approval process [as pioneer drugs] delayed

the entry of relatively inexpensive generic drugs into the market place,‖ at

substantial cost to consumers and the government. (Mylan Pharmaceuticals, Inc.

v. Shalala (D.D.C. 2000) 81 F.Supp.2d 30, 32; see H.R.Rep. No. 98-857, 2d Sess.,

pt. 1, p. 17 (1984), reprinted in 1984 U.S. Code Cong. & Admin. News, at p.

2650.) To expedite the availability of low cost generic drugs, Congress authorized

an abbreviated approval process for drugs whose active ingredients had already

been proven safe and effective in earlier clinical trials. (Drug Price Competition &

Patent Term Restoration Act of 1984, Pub.L. No. 98-417, tit. I, §§ 101-106 (Sept.

24, 1984) 98 Stat. 1585, 1585–1597, codified as amended at 21 U.S.C. § 355 (the

Hatch-Waxman Act); see H.R.Rep. No. 98-857, 2d Sess., pt. 1, pp. 14, 16–17

(1984), reprinted in 1984 U.S. Code Cong. & Admin. News, pp. 2647, 2649–

2650.)

Under the Hatch-Waxman Act, a prospective generic drug manufacturer

may file a streamlined application asserting the generic drug‘s bioequivalence with

an existing pioneer drug, thus piggybacking on the safety and efficacy data already

submitted to the FDA in connection with its approval of the original drug. (21

U.S.C. § 355(j)(2)(A)(ii), (iv); see Actavis, supra, 570 U.S. at p. ___ [186 L.Ed.2d


1

A generic drug is a drug designed to be identical to an already-FDA-

approved pioneer drug in active ingredients, safety, and efficacy, and thus
therapeutically equivalent to its brand-name counterpart. (See PLIVA, Inc. v.
Mensing
(2011) 564 U.S. ___, ___, fn. 2 [180 L.Ed.2d 580, 588, fn. 2; 131 S.Ct.
2567, 2574, fn. 2].)

3



at p. 354, 133 S.Ct. at p. 2228].) With respect to the patent implications of the

application, the generic drug manufacturer must make one of four certifications:

There is no patent for the underlying drug, the patent is expired, the patent will

expire, or (relevant here) the patent is invalid or will not be infringed by the

proposed manufacture and sale of the generic drug. (21 U.S.C.

§ 355(j)(2)(A)(vii); Actavis, at p. ___ [186 L.Ed.2d at pp. 353–354, 133 S.Ct. at

p. 2228].) An applicant that certifies the affected patent is invalid or will not be

infringed (a ―paragraph IV‖ certification) must give notice to all affected patent

owners. (21 U.S.C. § 355(j)(2)(B).) Submission of an application to manufacture

a generic version of a drug covered by a patent is a technical act of infringement

(35 U.S.C. § 271(e)(2)(A); Actavis, at p. ___ [186 L.Ed.2d at p. 354, 133 S.Ct. at

p. 2228]); to stay approval of the generic version, a patent owner must file an

infringement lawsuit against the generic drug manufacturer within 45 days (21

U.S.C. § 355(j)(5)(B)(iii)). To provide an incentive to assume the risks of

exposure to such litigation, the first generic manufacturer to file an application and

prevail is granted a potentially lucrative 180-day exclusivity window in which to

market its drug without competition from any other generic manufacturer. (21

U.S.C. § 355(j)(5)(B)(iv); Actavis, at p. ___ [186 L.Ed.2d at p. 354, 133 S.Ct. at

pp. 2228–2229.)

In 1991, twelve years before the scheduled expiration of the ‘444 patent,

defendant Barr Laboratories, Inc., filed an application to market a generic version

of Cipro. (In re Ciprofloxacin Hydrochloride Antitrust Lit., supra, 544 F.3d at

p. 1328.) Barr‘s application included a paragraph IV certification that the ‘444

patent was invalid and unenforceable. (Arkansas Carpenters Health and Welfare

Fund v. Bayer AG, supra, 604 F.3d at pp. 101–102; see 21 U.S.C.

§ 355(j)(2)(A)(vii)(IV).) Barr‘s statutory notice to Bayer contended Cipro‘s

derivation was obvious in light of prior art, the ‘444 patent was an invalid double

4



patent, and the patent was the product of inequitable conduct based on Bayer‘s

withholding of information about preexisting patents from the patent examiner.

(See 35 U.S.C. §§ 102, 103; In re Longi (Fed. Cir. 1985) 759 F.2d 887, 892–893.)

Bayer responded with a patent infringement suit, staying FDA approval, and Barr

counterclaimed for a declaratory judgment that the ‘444 patent was invalid.2

In early 1997, Bayer and Barr settled. Under the terms of the settlement,

Barr agreed to postpone marketing a generic version of Cipro until the ‘444 patent

expired. It also agreed to a consent judgment affirming the patent‘s validity and to

modification of the certification in its FDA application from a paragraph IV

certification, alleging invalidity, to a ―paragraph III‖ certification, seeking to

market a generic drug upon patent expiration. (Arkansas Carpenters Health and

Welfare Fund v. Bayer AG, supra, 604 F.3d at p. 102; see 21 U.S.C.

§ 355(j)(2)(A)(vii)(III); 21 C.F.R. § 314.94(a)(12)(i)(A)(3) (2014).) In return,

Bayer agreed to make payments to Barr and to supply it with Cipro for licensed

resale beginning six months before patent expiration. (See In re Ciprofloxacin

Hydrochloride Antitrust Lit., supra, 544 F.3d at pp. 1328–1329.) This head start

mirrored the 180-day duopoly the Hatch-Waxman Act would have provided Barr

if it had succeeded in showing invalidity or noninfringement of Bayer‘s patent.


2

While the litigation was ongoing, Barr agreed to accept contribution to its

litigation costs from another generic drug manufacturer, defendant The Rugby
Group, Inc., a then-subsidiary of defendant Hoechst Marion Roussel, Inc., in
exchange for a share of the benefits of any settlement, judgment, or sale of generic
ciprofloxacin hydrochloride. (In re Ciprofloxacin Hydrochloride Antitrust Lit.,
supra, 544 F.3d at p. 1328.) In 1998, The Rugby Group, Inc. was acquired by
defendant Watson Pharmaceuticals, Inc. Generic defendants Barr Laboratories,
Inc., The Rugby Group, Inc., Watson, and Hoechst Marion Roussel, Inc., are
referred to collectively as Barr.

5



(21 U.S.C. § 355(j)(5)(B)(iv).) Barr was to receive Cipro from Bayer at 85

percent of current price.

Pursuant to the settlement, between 1997 and 2003, Bayer paid Barr $398.1

million. In that same period, Bayer‘s profits from sales of Cipro exceeded

$1 billion. (In re Ciprofloxacin Hydrochloride Antitrust Lit., supra, 261

F.Supp.2d at p. 194.)

The 1997 settlement between Bayer and Barr produced a wave of state and

federal antitrust suits. (Arkansas Carpenters Health and Welfare Fund v. Bayer

AG, supra, 604 F.3d at p. 102.) This case arises from nine such coordinated class

action suits brought by indirect purchasers of Cipro in California against Bayer

and Barr. (See In re Cipro Cases I & II (2004) 121 Cal.App.4th 402, fn. *, 406–

407.) The operative complaint in these coordinated proceedings alleges the Bayer-

Barr reverse payment settlement violated the Cartwright Act (Bus. & Prof. Code,

§ 16700 et seq.), unfair competition law (id., § 17200 et seq.), and common law

prohibition against monopolies. The gravamen of the complaint is that the 1997

agreement preserved Bayer‘s monopoly and ability to charge supracompetitive

prices at the expense of consumers, and Bayer in turn split these monopoly profits

with Barr. Class certification was granted and upheld on appeal. (In re Cipro

Cases I & II, at p. 418.) Thereafter, the parties stayed this action pending

resolution of consolidated federal challenges to the Bayer-Barr settlement.

Following a Federal Circuit ruling in favor of Bayer and Barr on federal

antitrust claims (In re Ciprofloxacin Hydrochloride Antitrust Lit., supra, 544 F.3d

1323),3 the trial court granted a defense summary judgment. It found decisional


3

As discussed below, both In re Ciprofloxacin Hydrochloride Antitrust Lit.,

supra, 544 F.3d 1323 and a second decision rejecting a federal antitrust challenge
to the Cipro settlement, Arkansas Carpenters Health and Welfare Fund v. Bayer


(footnote continued on next page)

6



law under the federal Sherman Act (15 U.S.C. § 1 et seq.) dispositive and held that

because the settlement agreement did not restrain competition longer than the

exclusionary scope of the ‘444 patent, it did not violate the Cartwright Act. The

Court of Appeal affirmed, holding that agreements restraining competition within

the scope of a patent are lawful unless the patent was procured by fraud or the suit

to enforce it was objectively baseless. The court held further that, even if there

were a disputed issue of material fact as to whether Bayer‘s suit to enforce the

‘444 patent was objectively baseless, litigation of that theory would be foreclosed

by exclusive federal court patent jurisdiction.

We granted review to resolve important unsettled issues of state antitrust

law. While the case was pending before this court, we entered an order

formalizing Bayer‘s dismissal from the proceedings pursuant to an approved

settlement. Barr remains as respondent.

DISCUSSION

I.

Reverse Payment Settlements Under the Hatch-Waxman Act

The Hatch-Waxman Act illustrates the law of unintended consequences.

Congress wrote into the act a substantial incentive for generics to enter markets

earlier by offering a 180-day exclusivity period to the first generic filer, and only

that filer, to challenge a patent. (21 U.S.C. § 355(j)(5)(B)(iv); see Hemphill,

Paying for Delay: Pharmaceutical Patent Settlement as a Regulatory Design

Problem (2006) 81 N.Y.U. L.Rev. 1553, 1566, 1578–1579, 1583.) The theory

was that a generic would be more likely to challenge dubious patents if offered the


(footnote continued from previous page)

AG, supra, 604 F.3d 98, were decided under principles later rejected by the United
States Supreme Court in Actavis, supra, 570 U.S. ___ [186 L.Ed.2d 343, 133 S.Ct.
2223].

7



carrot of an enormously valuable six-month period in which only it and the brand

could produce a drug. (Carrier, Unsettling Drug Patent Settlements: A Framework

for Presumptive Illegality (2009) 108 Mich. L.Rev. 37, 47; Bulow, The Gaming of

Pharmaceutical Patents in 4 Innovation Policy and the Economy (Jaffe et al.

edits., 2004) 145, 163; Hemphill, An Aggregate Approach to Antitrust: Using

New Data and Rulemaking to Preserve Drug Competition (2009) 109 Colum.

L.Rev. 629, 651.) Otherwise, ―free rider‖ problems might arise: every generic

would have an incentive to hold back and let some other generic be the one to

shoulder the risk and litigation costs associated with challenging a patent.

(Lemley & Shapiro, Probabilistic Patents (2005) 19 J. Econ. Perspectives 75, 88;

Hemphill, Paying for Delay, at p. 1605.)

This solution may well have encouraged more generics to file patent

challenges, but not without creating a series of new problems. In other settings, a

patentee might have little incentive to buy off a challenger in order to preserve its

monopoly and continue reaping monopoly profits, for the simple reason that

paying off the first challenger would simply encourage another challenger, and

then another, and then another. (See Actavis, supra, 570 U.S. at p. ___ [186

L.Ed.2d at pp. 361–362, 133 S.Ct. at p. 2235].) Two features of the Hatch-

Waxman Act change this dynamic. First, the 180-day exclusivity period created a

bottleneck; no one else could receive FDA approval until after its expiration. (21

U.S.C. § 355(j)(5)(B)(iv)(I); Hemphill, Paying for Delay: Pharmaceutical Patent

Settlement as a Regulatory Design Problem, supra, 81 N.Y.U. L.Rev. at pp. 1560–

1561, 1586–1587.) Second, other generics tempted to challenge a patent in the

wake of a settlement with the first-filing generic would have to wait out an

automatic 30-month stay the brand could obtain just by opposing their requests for

FDA approval. (21 U.S.C. § 355(j)(5)(B)(iii); Actavis, at p. ___ [186 L.Ed.2d at

pp. 361–362, 133 S.Ct. at p. 2235]; Bulow, The Gaming of Pharmaceutical

8



Patents in 4 Innovation Policy and the Economy, supra, at p. 164.) As a result,

the brand could effectively pick off ― ‗the most motivated challenger, and the one

closest to introducing competition‘ ‖ (Actavis, at p. ___ [186 L.Ed.2d at pp. 361–

362, 133 S.Ct. at p. 2235], quoting Hemphill, Paying for Delay, at p. 1586), with

all others stuck in line behind that generic (Cotter, Refining the “Presumptive

Illegality” Approach to Settlements of Patent Disputes Involving Reverse

Payments: A Commentary on Hovenkamp, Janis & Lemley (2003) 87 Minn.

L.Rev. 1789, 1801).4

This legal regime means that, regardless of the degree of likely validity of a

patent, the brand and first-filing generic have an incentive to effectively establish a

cartel through a reverse payment settlement. (12 Areeda & Hovenkamp, Antitrust

Law, supra, ¶ 2046, pp. 341–345; Hovenkamp, Anticompetitive Patent Settlements

and the Supreme Court’s Actavis Decision (2014) 15 Minn. J. L. Sci. & Tech. 3,

8–13; see Carrier, Unsettling Drug Patent Settlements: A Framework for

Presumptive Illegality, supra, 108 Mich. L.Rev. at p. 73 [under Hatch-Waxman,

―[g]enerics have powerful incentives to file the first patent challenge but little

incentive to pursue the litigation‖].) Rather than expend litigation costs on either

side, the brand and generic can reach a settlement that reflects the likely validity or

invalidity of the patent (stronger patent, smaller settlement; weaker patent, bigger

settlement), grants the generic a share of monopoly profits, and leaves the brand


4

Amendments to the Hatch-Waxman Act postdating the settlement in this

case may have partially alleviated the complete bottleneck problem (Hemphill,
Paying for Delay: Pharmaceutical Patent Settlement as a Regulatory Design
Problem
, supra, 81 N.Y.U. L.Rev. at p. 1587), although not issues arising from the
30-month stay or the reduced incentives for other generics, without the carrot of
180 days of duopoly, to bring patent challenges (12 Areeda & Hovenkamp,
Antitrust Law (3d ed. 2012) ¶ 2046, p. 341).

9



the sole manufacturer of the product. (Hovenkamp, Anticompetitive Patent

Settlements, at pp. 12–13.)

It is likely for this reason that reverse payment settlements, practically

unheard of before the Hatch-Waxman Act, have proliferated in the years since its

enactment. (Actavis, supra, 570 U.S. at p. ___ [186 L.Ed.2d at p. 362, 133 S.Ct. at

p. 2235]; Hovenkamp, Anticompetitive Patent Settlements, supra, 15 Minn. J. L.

Sci. & Tech. at pp. 13–16; Hemphill, An Aggregate Approach to Antitrust: Using

New Data and Rulemaking to Preserve Drug Competition, supra, 109 Colum.

L.Rev. at pp. 647–656.) This is probably not what Congress intended. (Actavis, at

p. ___ [186 L.Ed.2d at p. 362, 133 S.Ct. at p. 2235] [the Hatch-Waxman Act‘s

provisions have ―no doubt unintentionally . . . created special incentives for

collusion‖]); id. at p. ___ [186 L.Ed.2d at p. 360, 133 S.Ct. at p. 2234] [quoting

remarks of Sen. Hatch and Rep. Waxman decrying as an unintended consequence

of their legislation collusive agreements to delay competition].) The issue for us is

what, if anything, state antitrust law has to say about these problems.

II.

The Intersection Between Antitrust and Patent Law

A.

The Cartwright Act

The Legislature enacted the state‘s principal antitrust law, the Cartwright

Act, to rein in the burgeoning power of monopolies and cartels. (Clayworth v.

Pfizer, Inc. (2010) 49 Cal.4th 758, 772.) The act‘s principal goal is the

preservation of consumer welfare. (Cianci v. Superior Court (1985) 40 Cal.3d

903, 918; Marin County Bd. of Realtors, Inc. v. Palsson (1976) 16 Cal.3d 920,

935.) The act, like antitrust law in general, ―rest[s] ‗on the premise that the

unrestrained interaction of competitive forces will yield the best allocation of our

economic resources, the lowest prices, the highest quality and the greatest material

progress, while at the same time providing an environment conducive to the

preservation of our democratic political and social institutions.‘ ‖ (Marin County

10



Bd., at p. 935; see National Soc. of Professional Engineers v. United States (1978)
435 U.S. 679, 695.) At its heart is a prohibition against agreements that prevent

the growth of healthy, competitive markets for goods and services and the

establishment of prices through market forces. (See Speegle v. Board of Fire

Underwriters (1946) 29 Cal.2d 34, 44.) ―The act ‗generally outlaws any

combinations or agreements which restrain trade or competition or which fix or

control prices‘ [citation], and declares that, with certain exceptions, ‗every trust is

unlawful, against public policy and void.‘ ‖ (Pacific Gas & Electric Co. v. County

of Stanislaus (1997) 16 Cal.4th 1143, 1147.)

The ―trust[s]‖ the act prohibits include any ―combination . . . by two or

more persons‖ to ―create or carry out restrictions in trade or commerce‖ (Bus. &

Prof. Code, § 16720, subd. (a)) or to ―prevent competition in manufacturing,

making, transportation, sale or purchase of merchandise, produce or any

commodity‖ (id., subd. (c)). Also prohibited is any contract by which two or more

entities ―[a]gree to pool, combine or directly or indirectly unite any interests that

they may have connected with the sale . . . of any such article or commodity, that

its price might in any manner be affected.‖ (Id., subd. (e)(4).) Agreements in

violation of the act are ―absolutely void and . . . not enforceable at law or in

equity.‖ (Id., § 16722; see id., § 16726.)

Though the Cartwright Act is written in absolute terms, in practice not

every agreement within the four corners of its prohibitions has been deemed

illegal. (Morrison v. Viacom, Inc. (1998) 66 Cal.App.4th 534, 540.) Business and

Professions Code sections 16720, 16722, and 16726 draw upon the common law

prohibition against restraints of trade. (Corwin v. Los Angeles Newspaper Service

Bureau, Inc. (1971) 4 Cal.3d 842, 852; People v. Building Maintenance etc. Assn.

(1953) 41 Cal.2d 719, 727; Speegle v. Board of Fire Underwriters, supra, 29

Cal.2d at p. 44.) The earliest common law decisions imposed an absolute rule,

11



voiding ―all contracts . . . which in any degree tended to the restraint of trade.‖

(Wright v. Ryder (1868) 36 Cal. 342, 357.) But the common law rule was soon

modified and ―as relaxed, tolerated such [restraints of trade] as were restricted in

their operations within reasonable limits.‖ (Ibid.; see Vulcan Powder Co. v.

Hercules Powder Co. (1892) 96 Cal. 510, 512.) The United States Supreme Court

looked to the common law in embracing a rule of reason for determining which

agreements violate federal antitrust law (see Standard Oil Co. v. United States

(1911) 221 U.S. 1, 60), and this court thereafter followed suit: ―[I]t may be

assumed that the broad prohibitions of the Cartwright Act are subject to an implied

exception similar to the one that validates reasonable restraints of trade under the

federal Sherman Antitrust Act.‖ (Building Maintenance etc. Assn., at p. 727; see

Marin County Bd. of Realtors, Inc. v. Palsson, supra, 16 Cal.3d at p. 930; Corwin,

at p. 853.)5 What was true under the common law, however, is true today: ―the

difficulty lies in determining what are reasonable and what unreasonable

restrictions.‖ (Wright, at p. 358.)

B.

Patent Law

That difficulty is all the greater because antitrust law does not exist in a

vacuum. The patent laws ―are in pari materia with the antitrust laws and modify

them pro tanto [to that extent].‖ (Simpson v. Union Oil Co. (1964) 377 U.S. 13,

24.) To promote investment in invention and the public disclosure of new

discoveries, Congress has seen fit to grant inventors limited statutory monopolies


5

As we noted in People v. Building Maintenance etc. Assn., supra, 41 Cal.2d

at pages 726–727, a separate section of the Cartwright Act effectively codifies this
principle: ―It is not unlawful to enter into agreements or form associations or
combinations, the purpose and effect of which is to promote, encourage or
increase competition in any trade or industry, or which are in furtherance of
trade.‖ (Bus. & Prof. Code, § 16725.)

12



and the right to exclude competition in the manufacture, use, or sale of the patent‘s

subject. (35 U.S.C. § 154(a); see Bonito Boats, Inc. v. Thunder Craft Boats, Inc.

(1989) 489 U.S. 141, 150–151; Dawson Chemical Co. v. Rohm & Haas Co.

(1980) 448 U.S. 176, 215; Sears, Roebuck & Co. v. Stiffel Co. (1964) 376 U.S.

225, 229.) Accordingly, the issuance of a federal patent creates ―an exception to

the general rule against monopolies and to the right of access to a free and open

market.‖ (Precision Co. v. Automotive Co. (1945) 324 U.S. 806, 816.) While

―[t]he limited monopolies granted to patent owners do not exempt them from the

prohibitions‖ of antitrust law (Standard Oil Co. v. United States (1931) 283 U.S.

163, 169; see United Shoe Mach. Co. v. United States (1922) 258 U.S. 451, 463

464 [―the rights secured by a patent do not protect the making of contracts in

restraint of trade‖]), in a given case possession of a patent may provide a defense

to liability (United States v. Gen. Elec. Co. (1926) 272 U.S. 476, 488–490; Valley

Drug Co. v. Geneva Pharmaceuticals (11th Cir. 2003) 344 F.3d 1294, 1307).

Courts thus must reconcile the two bodies of law, making ―an adjustment between

the lawful restraint on trade of the patent monopoly and the illegal restraint

prohibited broadly by‖ antitrust law. (United States v. Line Material Co. (1948)
333 U.S. 287, 310.)

At the extremes, this is easy. If a patent were known to be invalid, a private

agreement nevertheless giving it effect would be plainly illegal. (See Bus. & Prof.

Code, §§ 16720, 16722, 16726.) Conversely, if a patent were known to be valid,

an agreement foreclosing competition no more than the statutory monopoly would

not restrain trade beyond what federal law permitted, and the rights patent law

affords the patentee would supersede any state law prohibition. Difficulties

emerge when we move from a hypothetical patent known to be determinately valid

or invalid to the real world, where validity may be unclear. When assessing the

antitrust implications of an agreement arising from a patent, the truth about the

13



patent‘s validity cannot always be known. The issue is how antitrust and patent

law should accommodate each other under these conditions of uncertainty.

III.

The Scope of the Patent Test

A.

The Court of Appeal and the Scope of the Patent Approach

The particular accommodation this case calls for arises from an issue of

virtual first impression under the Cartwright Act: how to apply the statutory bar

against restraints of trade to patent settlement agreements that limit competition,

but no more broadly than an injunction enforcing the patent would have, had one

been obtained. (Cf. In re Cardizem CD Antitrust Litigation (6th Cir. 2003) 332

F.3d 896, 904, fn. 8, 906–909 [deciding the issue under both federal law and the

Cartwright Act, but without independently analyzing state law].) Rejecting

plaintiffs‘ argument that agreements of this sort should be deemed uniformly

illegal, the Court of Appeal resolved the issue by adopting one of several

competing approaches courts had developed to solve the problem under federal

antitrust law, the scope of the patent test.6 Under that test, the Court of Appeal

held, ―a settlement of a lawsuit to enforce a patent does not violate the Cartwright

Act if the settlement restrains competition only within the scope of the patent,

unless the patent was procured by fraud or the suit for its enforcement was

objectively baseless.‖ The scope of the patent test thus gives wide effect to

patents by essentially presuming their validity in most cases. We conclude, as

more recent United States Supreme Court authority has now made clear, that this


6

See In re Tamoxifen Citrate Antitrust Litigation (2d Cir. 2006) 466 F.3d

187; cf. In re Cardizem CD Antitrust Litigation, supra, 332 F.3d at pp. 907–909
(adopting per se rule); In re K-Dur Antitrust Litigation (3d Cir. 2012) 686 F.3d
197 (adopting quick look rule of reason analysis).

14



test accords excess weight to the policies motivating patent law, gives insufficient

consideration to the concerns animating antitrust law, and must be rejected.

The federal cases the Court of Appeal followed identify three core

rationales for concluding a patent litigation settlement restricting competition no

more than a valid patent would is generally lawful. First, patents are presumed

valid. (35 U.S.C. § 282(a).) Given this presumption, many lower federal courts

reasoned, an agreement that does not extend monopoly beyond what a patent

grants imposes no additional injury to competition and, in the absence of anti-

competitive effects, generally survives antitrust scrutiny. (See In re Ciprofloxacin

Hydrochloride Antitrust Lit., supra, 544 F.3d at p. 1337; In re Tamoxifen Citrate

Antitrust Litigation, supra, 466 F.3d at pp. 212–213; Schering-Plough Corp. v.

FTC (11th Cir. 2005) 402 F.3d 1056, 1066–1068.)

Second, the fundamental purpose of patent law is to promote innovation

and the disclosure of inventions so that ultimately new discoveries may benefit the

public at large. (Bonito Boats, Inc. v. Thunder Craft Boats, Inc., supra, 489 U.S.

at pp. 150–151.) To subject exclusions within the scope of a patent to scrutiny and

potential liability would, lower courts feared, chill innovation and give inventors

pause in deciding whether to share their creations with the public. (See In re

Tamoxifen Citrate Antitrust Litigation, supra, 466 F.3d at p. 203; Schering-Plough

Corp. v. FTC, supra, 402 F.3d at p. 1075; Valley Drug Co. v. Geneva

Pharmaceuticals, supra, 344 F.3d at p. 1308.)

Third, there is a general policy in favor of settlement, perhaps more so in

patent litigation. (In re Ciprofloxacin Hydrochloride Antitrust Lit., supra, 544

F.3d at p. 1333; In re Tamoxifen Citrate Antitrust Litigation, supra, 466 F.3d at

p. 202; Schering-Plough Corp. v. FTC, supra, 402 F.3d at pp. 1072–1073.) Patent

litigation settlements ―may benefit the public by introducing a new rival into the

market, facilitating competitive production, and encouraging further innovation.‖

15



(Schering-Plough Corp., at p. 1075.) Conversely, a legal regime that hampers

settlement ―may actually decrease product innovation by amplifying the period of

uncertainty around a drug manufacturer‘s ability to research, develop, and market

the patented product or allegedly infringing product.‖ (Ibid.; see In re Tamoxifen

Citrate Antitrust Litigation, at p. 203.)

B.

Federal Trade Commission v. Actavis

The Court of Appeal‘s adoption of the scope of the patent test was the

product not of an analysis of the Cartwright Act‘s text, policy, or history, but of an

assessment of procedural and policy-based aspects of patent law. The soundness

of its choice of test thus depends on the extent to which that patent law assessment

was sound. In Actavis, supra, 570 U.S. ___ [186 L.Ed.2d 343, 133 S.Ct. 2223],

issued after the Court of Appeal‘s decision and after our grant of review, the

Supreme Court reversed a federal decision holding Hatch-Waxman reverse

payment settlement agreements ― ‗immune from antitrust attack so long as [their]

anticompetitive effects fall within the scope of the exclusionary potential of the

patent.‘ ‖ (Id. at p. ___ [186 L.Ed.2d at p. 353, 133 S.Ct. at p. 2227].) In the

course of its opinion, the Supreme Court dismantled the underpinning of each of

the cases the Court of Appeal had found persuasive.

First, the Supreme Court rejected the scope of the patent test‘s foundational

presumption that the holder of a challenged patent enjoys all the rights attendant to

ownership of a valid patent: ―to refer . . . simply to what the holder of a valid

patent could do does not by itself answer the antitrust question. The patent here

may or may not be valid, and may or may not be infringed.‖ (Actavis, supra, 570

U.S. at p. ___ [186 L.Ed.2d at p. 356, 133 S.Ct. at pp. 2230–2231].) To be sure, a

valid patent allows the patentee to exclude others from the market, ―[b]ut an

invalidated patent carries with it no such right.‖ (Id. at p. ___ [186 L.Ed.2d at

p. 356, 133 S.Ct. at p. 2231].) Patent litigation ―put[s] the patent‘s validity at

16



issue, as well as its actual preclusive scope‖; simply because a settlement curtails

testing and ultimate resolution of that issue, courts should not thereafter treat

patent law and its presumptions as conclusively establishing the challenged

patent‘s legitimate scope. (Id. at p. ___ [186 L.Ed.2d at p. 357, 133 S.Ct. at

p. 2231].)

Second, the core policies underlying patent law are more nuanced than the

cases applying a scope of the patent test had recognized, and the incentives to

innovate far sturdier than those courts had feared. Patents carry with them a

frequent cost—monopoly premiums the public must bear. (See Lear, Inc. v.

Adkins (1969) 395 U.S. 653, 670.) The willingness to pay that cost depends upon

a quid pro quo: ― ‗the public interest in granting patent monopolies‘ exists only to

the extent that ‗the public is given a novel and useful invention‘ in ‗consideration

for its grant.‘ ‖ (Actavis, supra, 570 U.S. at p. ___ [186 L.Ed.2d at p. 358, 133

S.Ct. at p. 2232].) Accordingly, patent policy does not support unquestioned

protection of every inventor‘s rights, but instead favors ―eliminating unwarranted

patent grants so the public will not ‗continually be required to pay tribute to

would-be monopolists without need or justification.‘ ‖ (Id. at p. ___ [186 L.Ed.2d

at p. 359, 133 S.Ct. at p. 2233].) Vigorous testing for validity is thus desirable in

order to weed out patents that shield a monopoly without offering corresponding

public benefits. (See Aronson v. Quick Point Pencil Co. (1979) 440 U.S. 257,

264; United States v. Glaxo Group Ltd. (1973) 410 U.S. 52, 58; Edward Katzinger

Co. v. Chicago Mfg. Co. (1947) 329 U.S. 394, 400–401.)7


7

As commentators have noted, an excess of invalid patents is one of the

principal problems in modern patent law. (See Ford, Patent Invalidity Versus
Noninfringement
(2013) 99 Cornell L.Rev. 71, 74 & fn. 11 [discussing substantial
scholarship on the point].) The pro-patent-challenge policy is particularly strong
in the Hatch-Waxman Act setting, given the 180-day exclusivity bounty Congress


(footnote continued on next page)

17



Third, the Supreme Court explained that while the policy favoring

settlement of patent litigation offers some support for limiting scrutiny of

agreements restraining competition only within the scope of a patent, it ultimately

is not dispositive. (Actavis, supra, 570 U.S. at p. ___ [186 L.Ed.2d at pp. 360,

364, 133 S.Ct. at pp. 2234, 2238].) Settlements are generally a positive good, but

not always; settlements of the sort challenged in Actavis, the court observed, can

amount to ―payment in return for staying out of the market‖ and permit monopoly

premiums still to be charged and simply divided up between the patent holder and

patent challenger; ―[t]he patentee and the challenger gain; the consumer loses.‖

(Id. at p. ___ [186 L.Ed.2d at p. 361, 133 S.Ct. at pp. 2234, 2235].) Such anti-

competitive effects will not always be justified, and an antitrust action to test a

settlement‘s legality may be warranted and feasible. (Id. at p. ___ [186 L.Ed.2d at

pp. 361–364, 133 S.Ct. at pp. 2235–2237].) Fears of chilling even legitimate

settlements are overstated; all that allowing antitrust scrutiny does is remove the

incentive to settle as a way to split monopoly profits. (Id. at p. ___ [186 L.Ed.2d

at p. 363, 133 S.Ct. at p. 2237].) Because the scope of the patent test overvalues

the policies underlying patent law at the expense of the equally relevant policies

underlying antitrust law, the court concluded, it cannot stand under federal law.

(Id. at p. ___ [186 L.Ed.2d at p. 357, 133 S.Ct. at p. 2231].)



(footnote continued from previous page)

adopted as an incentive to bring such challenges. (See 21 U.S.C.
§ 355(j)(5)(B)(iv); 12 Areeda & Hovenkamp, Antitrust Law, supra, ¶ 2046,
p. 340; Carrier, Unsettling Drug Patent Settlements: A Framework for
Presumptive Illegality
, supra, 108 Mich. L.Rev. at pp. 43, 64; ante, pp. 7–8.)

18



C.

The Scope of the Patent Test’s Validity Under State Law

Barr contends Actavis is distinguishable because it involved a public

prosecution under the Federal Trade Commission Act (15 U.S.C. § 45 et seq.), not

a private antitrust suit, and this court should embrace the scope of the patent test as

a matter of state antitrust law.

We agree Actavis is not dispositive on matters of state law. Indeed, even if

Actavis had been a private Sherman Act case, its conclusions would not dictate

how the Cartwright Act must be read. ―Interpretations of federal antitrust law are

at most instructive, not conclusive, when construing the Cartwright Act, given that

the Cartwright Act was modeled not on federal antitrust statutes but instead on

statutes enacted by California‘s sister states around the turn of the 20th century.‖

(Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1195; see State

of California ex rel. Van de Kamp v. Texaco, Inc. (1988) 46 Cal.3d 1147, 1164.)

That said, nothing in the United States Supreme Court‘s discussion of the legal

rules at the boundary between antitrust and patent law hinged on the happenstance

that the case under review involved a public prosecutor. Accordingly, that

circumstance neither adds to nor detracts from the persuasive force the discussion

would otherwise have.

What does affect the weight to be accorded Actavis is the extent to which

its analysis establishes the metes and bounds of patent law and policy. Patent law

is federal law. (U.S. Const., art. I, § 8, cl. 8; see Bonito Boats, Inc. v. Thunder

Craft Boats, Inc., supra, 489 U.S. at pp. 146–157.) The United States Supreme

Court is the final arbiter of questions of patent law and the extent to which

interpretations of antitrust law—whether state or federal—must accommodate

patent law‘s requirements, and Actavis is its latest word on the subject. If under

Actavis patent law demands extensive deference to patents‘ presumed validity and

the consecration of a broad range of agreements otherwise facially illegal under

19



state law, we must abide by that judgment. Conversely, if the accommodation

necessitated by patent policy is somewhat narrower than previously understood,

we again must treat that determination as conclusive and reconsider the proper

domain of state antitrust law in light of that cession of territory.

Barr asserts Actavis is alternatively distinguishable on the ground the

underlying patent there was far weaker than the underlying patent here.8 But

Actavis‘s analysis was not contingent on a particular level of uncertainty

surrounding the patent before it. Instead, the court simply recognized that any

patent might, or might not, be valid. (Actavis, supra, 570 U.S. at p. ___ [186

L.Ed.2d at p. 356, 133 S.Ct. at p. 2231]; see id. at p. ___ [186 L.Ed.2d at p. 367,

133 S.Ct. at p. 2240] (dis. opn. of Roberts, C.J.) [recognizing the problem ―that

we‘re not quite certain if the patent is actually valid, or if the competitor is

infringing it,‖ a problem ―that is always the case‖ in patent disputes].) Indeed, a

critical insight undergirding Actavis is that patents are in a sense probabilistic,

rather than ironclad: they grant their holders a potential but not certain right to

exclude.

The uncertainty concerning a patent‘s validity is a by-product of the

realities surrounding patent issuance and the legal regime Congress and the courts

have established for patent enforcement. In the first instance, a patent ―simply

represents a legal conclusion reached by the Patent Office. Moreover, the legal

conclusion is predicated on factors as to which reasonable men can differ widely.

Yet the Patent Office is often obliged to reach its decision in an ex parte


8

After the settlement, Bayer submitted the ‘444 patent to the Patent and

Trademark Office for reexamination and obtained reaffirmation that it was not
invalid. (See 35 U.S.C. § 302.) Later patent challenges by litigants other than
Barr were unsuccessful. (See In re Ciprofloxacin Hydrochloride Antitrust Lit.
(E.D.N.Y. 2005) 363 F.Supp.2d 514, 519–520.)

20



proceeding, without the aid of the arguments which could be advanced by parties

interested in proving patent invalidity.‖ (Lear, Inc. v. Adkins, supra, 395 U.S. at

p. 670.) That decision is constrained by time and resource pressures; facing an

enormous backlog, patent examiners may average less than 20 hours spent on each

application. (Ford, Patent Invalidity Versus Noninfringement, supra, 99 Cornell

L.Rev. at pp. 87–89; Lemley & Shapiro, Probabilistic Patents, supra, 19 J. Econ.

Perspectives at p. 79; Lemley, Rational Ignorance at the Patent Office (2001) 95

Nw.U. L.Rev. 1495, 1499–1500.) Given this underlying reality, Congress has

elected not to make the issuance of a patent conclusive but, rather, subject to

validation or invalidation in court proceedings. (35 U.S.C. § 282; see, e.g., Alice

Corp. Pty. Ltd. v. CLS Bank Int’l (2014) 573 U.S. ___ [189 L.Ed.2d 296, 134 S.Ct.

2347]; Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp.

(1965) 382 U.S. 172, 176.) A patent is, in effect, a right to ask the government to

exercise its power to keep others from using an invention without consent. (Zenith

Corp. v. Hazeltine (1969) 395 U.S. 100, 135.) Whether a court will do so—

whether it will issue an injunction—will depend on actual proof of validity.

The differential application of collateral estoppel adds another layer of

uncertainty. A finding that a patent is invalid operates in rem and estops the

patentee from asserting validity against the world. (Blonder-Tongue v. University

Foundation (1971) 402 U.S. 313, 349–350.) In contrast, a finding that a patent is

valid operates only on the parties and does not extend from one infringement case

to the next. A future challenger with new or better information may subsequently

raise, and succeed on, an invalidity defense to a charge of infringement. (In re

Swanson (Fed. Cir. 2008) 540 F.3d 1368, 1377; Ethicon, Inc. v. Quigg (Fed. Cir.

1988) 849 F.2d 1422, 1429, fn. 3 [― ‗A patent is not held valid for all purposes but,

rather, not invalid on the record before the court‘ ‖ and ― ‗simply remains valid

21



until another challenger carries‘ ‖ the burden of showing invalidity].) Each case

may show only that a patent has not been invalidated, yet.

If the assertion of patent rights leads to a court injunction excluding a

competitor from the marketplace, there is no antitrust problem. If instead the

assertion leads to a private settlement agreement, there is a potential antitrust

problem. With a settlement, any restraint arises directly from the private

agreement and only indirectly from the patent, which remains in the background,

motivating the parties‘ actions according to their assessments of its strength. That

a patent has not (yet) been invalidated may allow some confidence about its

fundamental enforceability, but does not allow a court to skip entirely an antitrust

analysis of competitive restraints within the patent‘s scope on the assumption that

its validity has been established. The scope of the patent test is flawed precisely

because it assumes away whatever level of uncertainty a given patent—the ‘444

patent here, no less than the one at issue in Actavis—may be subject to.9


9

The Actavis treatment of patents as in some sense probabilistic rests on a

substantial body of scholarship suggesting patents are best understood this way.
(See, e.g., Lemley & Shapiro, Probabilistic Patents, supra, 19 J. Econ.
Perspectives at pp. 75–76, 95; Shapiro, Antitrust Analysis of Patent Settlements
Between Rivals
(Summer 2003) 17 Antitrust 70, 75; Leffler & Leffler, The
Probabilistic Nature of Patent Rights
(Summer 2003) 17 Antitrust 77; Shapiro,
Antitrust Limits to Patent Settlements (2003) 34 RAND J. Econ. 391, 395.)
Others, including the Actavis dissenters, have disagreed, insisting a patent
ultimately is always only valid or invalid, whether we know it yet or not. (Actavis,
supra, 570 U.S. at p. ___ [186 L.Ed.2d at p. 372, 133 S.Ct. at p. 2244] (dis. opn. of
Roberts, C.J.); Schildkraut, Patent-Splitting Settlements and the Reverse Payment
Fallacy
(2004) 71 Antitrust L.J. 1033; McDonald, Hatch-Waxman Patent
Settlements and Antitrust: On “Probabilistic” Patent Rights and False Positives

(Spring 2003) 17 Antitrust 68.) The Supreme Court majority‘s views are
conclusive as to which side of this philosophical divide over the proper treatment
of patents is correct, and we follow them.

22



Aside from its attempts to distinguish Actavis, Barr argues a 1953

California decision predating the recent federal Hatch-Waxman Act decisions

favors the scope of the patent test for Cartwright Act challenges to patent

settlements. (See Fruit Machinery Co. v. F.M. Ball & Co. (1953) 118 Cal.App.2d

748, 758.) We do not read that opinion so broadly.

In Fruit Machinery, six canning companies formed a corporation and

licensed to it rights under a fruit pitter patent owned by one of the companies. In

turn, the licensee contracted with each of the six, sublicensing to them the right to

build and own a specified number of pitters and to lease additional pitters in

exchange for payment of royalties. A dispute over nonpayment of royalties arose

between the licensee and one of the six companies. The company raised as a

defense to payment that the contractual arrangements gave the six companies an

unlawful monopoly on pitter ownership and were thus unenforceable. The Court

of Appeal found no antitrust violation, explaining: ―Defendant has not shown that

the parties, in executing and carrying out the sublicense agreement in suit,

exercised rights or powers not accorded them by the patent law or abused any

rights or powers accorded them by that law.‖ (Fruit Machinery Co. v. F.M. Ball

& Co., supra, 118 Cal.App.2d at p. 762, italics added.) The Court of Appeal

distinguished other cases involving antitrust violations as involving a ―patentee or

his assignee [who] went beyond that which was necessary or incidental to the

scope of his patent and brought himself within the proscription of the antitrust

laws.‖ (Id. at p. 763.)

Fruit Machinery does not stand for the proposition that any restraints of

trade within the scope of a patent are valid. Rather, it recognizes trade restraints

that exceed those authorized by a patent may be invalid and, moreover, that the

―abuse[]‖ of patent rights may also run afoul of antitrust law. (Fruit Machinery

Co. v. F.M. Ball & Co., supra, 118 Cal.App.2d at p. 762.) The court responded to

23



the concern that the corporate licensee might use its exclusive patent rights to

charge far higher royalties for leased than owned pitters not by saying such a

differential would automatically be lawful, as within the scope of any patent

rights, but by saying only ―that such has not happened yet‖ and it would not

presume a ―[f]uture violation . . . of the antitrust laws.‖ (Ibid.)

No other California authority Barr has cited, nor any we have found,

establishes the scope of the patent test is applicable under the Cartwright Act.

Even if such precedent existed, we would be forced to reexamine it in light of

Actavis. The scope of the patent test insulates from antitrust scrutiny virtually any

agreement that restrains trade no more than the patent itself would have, if valid.

State law must yield to federal, but we cannot under the guise of patent law carve

into the Legislature‘s enactments a larger exception than federal law dictates, and

Actavis shows such a broad exemption is not required. Accordingly, we conclude

the scope of the patent test is inapplicable to Cartwright Act claims.

IV.

Analysis of Reverse Payment Patent Settlements

Having joined the United States Supreme Court in rejecting the scope of the

patent test, we consider what rubric courts should instead apply under state law to

reverse payment patent settlements.

A.

Antitrust Analysis Under the Cartwright Act

As discussed, although the prohibitions of the Cartwright Act are framed in

superficially absolute language, deciding antitrust illegality is not as simple as

identifying whether a challenged agreement involves a restraint of trade. (See

Chicago Board of Trade v. United States (1918) 246 U.S. 231, 238 [pointing out

that ―[e]very agreement concerning trade . . . restrains‖ (italics added)].) Instead,

the Cartwright Act and Sherman Act carry forward the common law

24



understanding that ―only unreasonable restraints of trade are prohibited.‖ (Marin

County Bd. of Realtors, Inc. v. Palsson, supra, 16 Cal.3d at p. 930.)

Under the traditional rule of reason, ―inquiry is limited to whether the

challenged conduct promotes or suppresses competition.‖ (Fisher v. City of

Berkeley (1984) 37 Cal.3d 644, 672, affd. sub nom. Fisher v. Berkeley (1986) 475

U.S. 260.) To determine whether an agreement harms competition more than it

helps, a court may consider ―the facts peculiar to the business in which the

restraint is applied, the nature of the restraint and its effects, and the history of the

restraint and the reasons for its adoption.‖ (United States v. Topco Associates, Inc.

(1972) 405 U.S. 596, 607; see Corwin v. Los Angeles Newspaper Service Bureau,

Inc., supra, 4 Cal.3d at p. 854.) In a typical case, this may entail expert testimony

on such matters as the definition of the relevant market (Corwin, at p. 855) and the

extent of a defendant‘s market power (Fisherman’s Wharf Bay Cruise Corp. v.

Superior Court (2003) 114 Cal.App.4th 309, 334–339; Roth v. Rhodes (1994) 25

Cal.App.4th 530, 542–543).

Rule of reason inquiry is not required in every case; we and the United

States Supreme Court have partially simplified the analysis by identifying

categories of agreements or practices that can be said to always lack redeeming

value and thus qualify as per se illegal. (See Northern Pac. R. Co. v. United States

(1958) 356 U.S. 1, 5; Marin County Bd. of Realtors, Inc. v. Palsson, supra, 16

Cal.3d at pp. 930–931; Oakland-Alameda County Builders’ Exchange v. F. P.

Lathrop Constr. Co. (1971) 4 Cal.3d 354, 360–362.) ―The per se rule reflects an

irrebuttable presumption that, if the court were to subject the conduct in question

to a full-blown inquiry, a violation would be found under the traditional rule of

reason.‖ (Fisher v. City of Berkeley, supra, 37 Cal.3d at p. 666.)

More recently, a third category, quick look rule of reason analysis, has

emerged. (California Dental Assn. v. FTC (1999) 526 U.S. 756, 769–770; see

25



FTC v. Indiana Federation of Dentists (1986) 476 U.S. 447, 459–460; NCAA v.

Board of Regents of Univ. of Okla. (1984) 468 U.S. 85, 109–110.) Under the

quick look approach, applicable to cases where ―an observer with even a

rudimentary understanding of economics could conclude that the arrangements in

question would have an anticompetitive effect on customers and markets,‖ a

defendant may be asked to come forward with procompetitive justifications for a

challenged restraint without the plaintiff having to introduce elaborate market

analysis first. (California Dental Assn., at p. 770.)

There was a time when this court and the United States Supreme Court

treated the choice between per se and rule of reason analysis as a necessary

threshold inquiry involving rigidly distinct analytic boxes. In more recent years,

however, the Supreme Court has explained, ―[t]he truth is that our categories of

analysis of anticompetitive effect are less fixed than terms like ‗per se,‘ ‗quick

look,‘ and ‗rule of reason‘ tend to make them appear.‖ (California Dental Assn. v.

FTC, supra, 526 U.S. at p. 779.) ―[T]here is generally no categorical line to be

drawn between restraints that give rise to an intuitively obvious inference of

anticompetitive effect and those that call for more detailed treatment. What is

required, rather, is an enquiry meet for the case, looking to the circumstances,

details, and logic of a restraint.‖ (Id. at pp. 780–781.) The emergence of quick

look rule of reason analysis did not signal the supplanting of the traditional per

se/rule of reason dichotomy with a new trichotomy (Polygram Holding, Inc. v.

FTC (D.C. Cir. 2005) 416 F.3d 29, 35), but rather a shift to ― ‗ ―something of a

sliding scale‖ ‘ ‖ in antitrust analysis. (Actavis, supra, 570 U.S. at p. ___ [186

L.Ed.2d at p. 364, 133 S.Ct. at p. 2237].)

This more nuanced approach makes equal sense for claims under the

Cartwright Act. Like the federal antitrust statutes, nothing in the text of the

Cartwright Act dictates the precise details of the per se and rule of reason

26



approaches; these are but useful tools the courts have developed over time to carry

out the broad purposes and give meaning to the general phrases of the antitrust

statutes. (See National Soc. of Professional Engineers v. United States, supra, 435

U.S. at p. 688.) It is consistent with the common law tradition at the root of our

antitrust laws to describe, as the United States Supreme Court now has, the

analytic approach as involving a continuum, with the ―the circumstances, details,

and logic‖ of a particular restraint (California Dental Assn. v. FTC, supra, 526

U.S. at p. 781) dictating how the courts that confront the restraint should analyze

it. In lieu of an undifferentiated one-size-fits-all rule of reason, courts may

―devise rules . . . for offering proof, or even presumptions where justified, to make

the rule of reason a fair and efficient way to prohibit anticompetitive restraints and

to promote procompetitive ones.‖ (Leegin Creative Leather Products, Inc. v.

PSKS, Inc. (2007) 551 U.S. 877, 898–899; see Fisher v. City of Berkeley, supra,

37 Cal.3d at pp. 671–677 [tailoring the rule of reason to account for differences

between private and municipal government actions].)

It follows that we must consider not simply whether per se or rule of reason

analysis applies to reverse payment patent settlements. To the extent rule of

reason analysis applies, as we will conclude it does, we must also consider how

the analysis should be structured to most efficiently differentiate between

reasonable and unreasonable restraints of trade in this context. (See California

Dental Assn. v. FTC, supra, 526 U.S. at p. 781.)

B.

The Competitive Harm from Purchasing an Extension of
Monopoly


We begin with the proposition that agreements to establish or maintain a

monopoly are restraints of trade made unlawful by the Cartwright Act. (Lowell v.

Mother’s Cake & Cookie Co. (1978) 79 Cal.App.3d 13, 23; Dimidowich v. Bell &

Howell (9th Cir. 1986) 803 F.2d 1473, 1478.) Under general antitrust principles, a

27



business may permissibly develop monopoly power, i.e., ―the power to control

prices or exclude competition‖ (United States v. DuPont & Co. (1956) 351 U.S.

377, 391), through the superiority of its product or business acumen. To acquire

or maintain that power through agreement and combination with others, however,

is quite a different matter. (United States v. Grinnell Corp. (1966) 384 U.S. 563,

570–571.)

Pursuant to this rule, businesses may not engage in a horizontal allocation

of markets, with would-be competitors dividing up territories or customers.

(United States v. Topco Associates, Inc., supra, 405 U.S. at pp. 608, 612; Vulcan

Powder Co. v. Hercules Powder Co., supra, 96 Cal. at pp. 514–515; Guild

Wineries & Distilleries v. J. Sosnick & Son (1980) 102 Cal.App.3d 627, 633–635.)

Such allocations afford each participant an ―enclave . . . , free from the danger of

outside incursions,‖ in which to exercise monopoly power and extract monopoly

premiums. (United States v. Sealy, Inc. (1967) 388 U.S. 350, 356.)

Similarly, a firm may not ―pay[] its only potential competitor not to

compete in return for a share of the profits that firm can obtain by being a

monopolist.‖ (Valley Drug Co. v. Geneva Pharmaceuticals, supra, 344 F.3d at

p. 1304.) In Palmer v. BRG of Ga., Inc. (1990) 498 U.S. 46, for example, two

competing bar review course providers did just that. One provider agreed to

withdraw from a particular state market in exchange for the second provider

paying the withdrawing provider a share of subsequent profits and agreeing in

return not to compete outside that state market. In a per curiam opinion, the

United States Supreme Court summarily declared the agreement unlawful on its

face. (Id. at pp. 49–50; see Getz Bros. & Co. v. Federal Salt Co. (1905) 147 Cal.

115, 119 [payment for agreement not to compete and to discourage others from

competing is illegal]; Wright v. Ryder, supra, 36 Cal. at p. 359 [agreement not to

28



compete in California market violates common law prohibition on restraints of

trade].)

Second, these principles extend into the patent arena to prohibit a patentee‘s

purchase of a potential competitor‘s consent to stay out of the market. Antitrust

law condemns a patentee‘s payment ―to maintain supracompetitive prices to be

shared among the patentee and the challenger rather than face what might have

been a competitive market.‖ (Actavis, supra, 570 U.S. at p. ___ [186 L.Ed.2d at

p. 363, 133 S.Ct. at p. 2236].) This is so even when the patent is likely valid: ―The

owner of a particularly valuable patent might contend, of course, that even a small

risk of invalidity justifies a large payment. But, be that as it may, the payment (if

otherwise unexplained) likely seeks to prevent the risk of competition. And, as we

have said, that consequence constitutes the relevant anticompetitive harm.‖ (Ibid.)

Actavis embraces the insights of Professor Carl Shapiro and others that the

relevant benchmark in evaluating reverse payment patent settlements should be no

different from the benchmark in evaluating any other challenged agreement: What

would the state of competition have been without the agreement? In the case of a

reverse payment settlement, the relevant comparison is with the average level of

competition that would have obtained absent settlement, i.e., if the parties had

litigated validity/invalidity and infringement/noninfringement to a judicial

determination. (Shapiro, Antitrust Limits to Patent Settlements, supra, 34 RAND

J. Econ. at p. 396; see Addanki & Butler, Activating Actavis: Economic Issues in

Applying the Rule of Reason to Reverse Payment Settlements (2014) 15 Minn. J. L.

Sci. & Tech. 77, 93; Lemley & Shapiro, Probabilistic Patents, supra, 19 J. Econ.

Perspectives at p. 94; Willig & Bigelow, Antitrust Policy Toward Agreements that

Settle Patent Litigation (2004) 49 Antitrust Bull. 655, 664, 677–679.) Consider a

patent with a 50 percent chance of being upheld. After litigation, on average,

consumers would be subject to a monopoly for half the remaining life of the

29



patent. A settlement that allowed a generic market entry at the midpoint of the

time remaining until expiration would replicate the expected level of competition;

the period of exclusion would reflect the patent‘s strength. But a settlement that

delayed entry still longer would extend the elimination of competition beyond

what the patent‘s strength warranted; to the extent it did, the additional elimination

of the possibility of competition would constitute cognizable anticompetitive

harm. (See Actavis, supra, 570 U.S. at p. ___ [186 L.Ed.2d at p. 363, 133 S.Ct. at

p. 2236].)

Barr argues that the procompetitive or anticompetitive effects of a

settlement must be measured by comparison to the entire remaining life of a

patent. We disagree. Actavis makes clear that for antitrust purposes patents are no

longer to be treated as presumptively ironclad. This means the period of exclusion

attributable to a patent is not its full life, but its expected life had enforcement

been sought. This expected life represents the baseline against which the

competitive effects of any agreement must be measured.10 If an agreement only

replicates the likely average result of litigation, any exclusion is a function of the

underlying patent strength; if it extends exclusion beyond that point, this further

exclusion from the marketplace—and the attendant anticompetitive effect—is

attributable to the agreement. Actavis thus represents an application of the settled

principle that ―[t]he owner of a patent cannot extend his statutory grant by contract

or agreement. A patent affords no immunity for a monopoly not fairly or plainly


10

To be clear, because the relevant baseline is the result that would have

occurred in the absence of any agreement, it is not a cognizable harm simply to
show that the parties might have elected a different settlement agreement more
favorable to competition and consumers. There is no statutory right to have
parties enter the agreement most favorable to competition, only a prohibition
against entering agreements that harm competition.

30



within the grant.‖ (U.S. v. Masonite Corp. (1942) 316 U.S. 265, 277.) The

measure of the statutory grant, and the limit on the monopoly that may be

preserved by agreement, is the average expected duration that would have resulted

from judicial testing.

This method of analysis, and of assessing anticompetitive harm, is not

materially different from that applied in any other garden-variety antitrust case.

Every case involves a comparison of a challenged agreement against a prediction

about—a probabilistic assessment of—the expected competition that would have

arisen in its absence. (Shapiro, Antitrust Analysis of Patent Settlements Between

Rivals, supra, 17 Antitrust at p. 70.) Every restraint of trade condemned for

suppressing market entry involves uncertainties about the extent to which

competition would have come to pass. (Hemphill, An Aggregate Approach to

Antitrust: Using New Data and Rulemaking to Preserve Drug Competition, supra,

109 Colum. L.Rev. at p. 637.) No matter; as the leading antitrust treatise notes,

―the law does not condone the purchase of protection from uncertain competition

any more than it condones the elimination of actual competition.‖ (12 Areeda &

Hovenkamp, Antitrust Law, supra, ¶ 2030b, p. 220; see U.S. v. Microsoft Corp.

(D.C. Cir. 2001) 253 F.3d 34, 79 (en banc) [―it would be inimical to the purpose of

the Sherman Act to allow monopolists free reign to squash nascent, albeit

unproven, competitors at will‖].) The antitrust laws foreclose agreements

eliminating ―the risk of competition‖—the competitive market that ―might have

been.‖ (Actavis, supra, 570 U.S. at p. ___ [186 L.Ed.2d at p. 363, 133 S.Ct. at

p. 2236].) Purchasing freedom from the possibility of competition, whether done

by a patentee or anyone else, is illegal. An agreement to exchange consideration

for elimination of any portion of the period of competition that would have been

expected had a patent been litigated is a violation of the Cartwright Act.

31



C.

The Structure of the Rule of Reason as Applied to Patent
Settlements


We consider next how to identify whether the parties‘ settlement agreement

eliminates competition beyond the point at which competition would have been

expected in the absence of an agreement. Only if the agreement limits competition

beyond that point, the point the strength of the patent would have justified, is there

an antitrust issue.

1.

Plaintiff‘s Prima Facie Case

We conclude a third-party plaintiff challenging a reverse payment patent

settlement must show four elements: (1) the settlement includes a limit on the

settling generic challenger‘s entry into the market; (2) the settlement includes cash

or equivalent financial consideration flowing from the brand to the generic

challenger; and the consideration exceeds (3) the value of goods and services other

than any delay in market entry provided by the generic challenger to the brand, as

well as (4) the brand‘s expected remaining litigation costs absent settlement. We

explain these elements in turn.

That a plaintiff challenging a reverse payment settlement must establish the

settlement limits the challenging generic‘s entry is self-evident. If the settlement

contains no component of delay and permits the generic to enter the market and

compete fully and immediately, there is no restraint of trade and no potential for

antitrust concern.

As well, a plaintiff must establish a reverse payment—financial

consideration flowing from the brand to the generic challenger.11 In the absence

11

To some extent, the settlement agreement challenged here is a relic. Cash

reverse payments were not uncommon in the 1990s, but shortly thereafter brands
and generics began using a wide range of other forms of consideration to
accomplish reverse payment. (See Hemphill, An Aggregate Approach to
Antitrust: Using New Data and Rulemaking to Preserve Drug Competition
, supra,


(footnote continued on next page)

32



of payment, one would expect rational parties that settle to select a market entry

point roughly corresponding to their joint expectation as to when entry would have

occurred, on average, if the patent‘s validity and infringement had been fully

litigated. (Hovenkamp et al., Anticompetitive Settlement of Intellectual Property

Disputes (2003) 87 Minn. L.Rev. 1719, 1762.) If market entry were substantially

later than the generic thought it could obtain through litigation, the generic would

be unwilling to settle and forgo the additional profits it thought it could earn from

an earlier entry; conversely, if the entry were substantially earlier than the brand

thought it could obtain through litigation, the brand would not settle and forgo an

additional period of monopoly. Absent payment, one can accept an agreement to

postpone market entry as a fair approximation of the expected level of competition

that would have obtained had the parties litigated; absent payment, any delay in

entry may be attributed to the effective strength of the challenged patent, rather

than the settlement agreement. (See ibid.; Carrier, Payment After Actavis (2014)

100 Iowa L.Rev. 7, 17.)

Third, a plaintiff must establish the consideration to the generic challenger

exceeds the value of any other collateral products or services provided by the

generic to the brand. As the Supreme Court noted, the concern that a reverse

payment raises will depend in part on ―its independence from other services for

which it might represent payment.‖ (Actavis, supra, 570 U.S. at p. ___ [186



(footnote continued from previous page)

109 Colum. L.Rev. at pp. 647–658.) Because the Cipro settlement involved cash,
we need not define precisely what noncash forms of consideration will qualify, but
courts considering Cartwright Act claims should not let creative variations in the
form of consideration result in the purchase of freedom from competition escaping
detection.

33



L.Ed.2d at p. 364, 133 S.Ct. at p. 2237].) A ―payment may reflect compensation

for other services that the generic has promised to perform—such as distributing

the patented item or helping to develop a market for that item.‖ (Id. at p. ___ [186

L.Ed.2d at p. 362, 133 S.Ct. at p. 2236.) If payment is no more than would be

expected as compensation for additional products or services, then the agreement

includes no additional consideration for delay and we can trust that any limit on

competition is a legitimate consequence of the patent‘s strength and the

contracting parties‘ expectations concerning its exclusionary power.

Considerable caution is in order in evaluating settlements that include side

agreements for generic products or services. Historically, it appears brands and

generics have engaged in business dealings outside the settlement context far less

often than in it. (Hemphill, An Aggregate Approach to Antitrust: Using New Data

and Rulemaking to Preserve Drug Competition, supra, 109 Colum. L.Rev. at

pp. 663–668.) A side agreement involving difficult-to-value assets might

conceivably be added to a patent settlement to provide cover for the purchase of

additional freedom from competition. (Id. at pp. 632–633, 669; Bulow, The

Gaming of Pharmaceutical Patents in 4 Innovation Policy and the Economy,

supra, at pp. 169–171; Carrier, Unsettling Drug Patent Settlements: A Framework

for Presumptive Illegality, supra, 108 Mich. L.Rev. at p. 79.) This court long ago

established that side deals should not be permitted to serve as fig leaves for

agreements to eliminate competition. In Getz Bros. & Co. v. Federal Salt Co.,

supra, 147 Cal. 115, the parties entered an agreement to exchange money for (1)

an agreement not to compete and to discourage competition in the salt trade and

(2) more than 1,000 pounds of salt. Precisely how much of the payment was

attributable to the actual provision of salt we could not say, but so long as any

portion of the payment was attributable to the covenant not to compete—and we

34



viewed it as ―plain . . . that part of it, at least, was‖—the deal as a whole was an

illegal restraint of trade. (Id. at p. 118.)

Fourth, a plaintiff must establish the amount of the payment, over and

above the value of collateral products or services from the generic, also exceeds

the brand‘s anticipated future litigation costs. In some cases, a ―reverse payment

. . . may amount to no more than a rough approximation of the litigation expenses

saved through the settlement. . . . Where a reverse payment reflects traditional

settlement considerations, such as avoided litigation costs or fair value for

services, there is not the same concern that a patentee is using its monopoly profits

to avoid the risk of patent invalidation or a finding of noninfringement. In such

cases, the parties may have provided for a reverse payment without having sought

or brought about the anticompetitive consequences we mentioned above.‖

(Actavis, supra, 570 U.S. at p. ___ [186 L.Ed.2d at p. 362, 133 S.Ct. at p. 2236].)

A rational brand might be indifferent as between (1) actually litigating or (2)

settling, with market entry at the point expected, on average, from asserting its

patent in litigation and a payment to the generic in an amount up to what would

have been spent in that litigation. It is thus necessary to evaluate the reverse

payment‘s ―scale in relation to the payor‘s anticipated future litigation costs.‖ (Id.

at p. ___ [186 L.Ed.2d at p. 364, 133 S.Ct. at p. 2237].)

We consider briefly the allocation of burdens of proof and production.

Unless a challenged settlement agreement includes both a restraint on generic

competition and a reverse payment to the generic in excess of both brand litigation

costs and generic collateral products and services, there is no reason to assume the

settlement includes any element of purchased freedom from competition, as

opposed to a limit on competition flowing naturally, and lawfully, from the

perceived strength of the brand‘s patent. Accordingly, the burden of proof as to

35



these elements rests with the Cartwright Act plaintiff. (See Aguilar v. Atlantic

Richfield Co. (2001) 25 Cal.4th 826, 861.)

The burden of producing evidence (see Evid. Code, §§ 110, 550) is a

slightly different matter. ― ‗Where the evidence necessary to establish a fact

essential to a claim lies peculiarly within the knowledge and competence of one of

the parties, that party has the burden of going forward with the evidence on the

issue although it is not the party asserting the claim.‘ ‖ (Sanchez v. Unemployment

Ins. Appeals Bd. (1977) 20 Cal.3d 55, 71.) This is so with regard to both a settling

party‘s own litigation costs and the existence and value of any collateral products

or services provided as part of a patent settlement; these are matters about which

the settling parties will necessarily have superior knowledge.12 Accordingly, once

a plaintiff has shown an agreement involving a reverse payment and delay, the

defendants have the burden of coming forward with evidence of litigation costs

and the value of collateral products and services.13 If the defendants fail to do so,

because, e.g., there was no side agreement or because they do not dispute the

collective amounts fall short of any payment to the generic, the plaintiff has

satisfied its burden on these points. If instead the defendants do so, the plaintiff

must carry the ultimate burden of persuasion that any reverse payment exceeds

litigation costs and the value of collateral products or services.


12

We do not suggest a defendant‘s testimony concerning the value conveyed

in side agreements is entitled to any more weight than the plaintiff‘s, only that the
defendants have the initial burden of introducing evidence of agreements for the
purchase of other products or services sufficiently valuable to explain any
payment.

13

Here, the brand, Bayer, settled out of the antitrust case, and Barr would not

be in a superior position with regard to knowledge of Bayer‘s future patent
litigation costs, so the burden of production on this point would remain with
plaintiffs.

36



We further conclude that a showing of the above elements is not only

necessary but also sufficient to make out a prima facie case that the settlement is

anticompetitive. If a brand is willing to pay a generic more than the costs of

continued litigation, and more than the value of any collateral benefits, in order to

settle and keep the generic out of the market, there is cause to believe some

portion of the consideration is payment for exclusion beyond the point that would

have resulted, on average, from simply litigating the case to its conclusion.

Otherwise, the brand would have had little incentive to settle at such a high price.

Moreover, the larger the gap, the stronger the inference one can draw.

A wealth of economic scholarship and analysis supports this inference.

Because the profit that can be earned under monopoly conditions is greater than

the combined profit that can be earned under duopoly conditions,14 a brand and

generic have a substantial incentive to settle at the latest market entry date

possible, with the brand paying a portion of monopoly profits to compensate the

generic for what it would have earned with an earlier entry.15 If the parties can


14

While this is a broadly shared economic tenet, it has also been empirically

demonstrated by the FDA in the current context. (See FDA, Center for Drug
Evaluation and Research, Generic Competition and Drug Prices (2010) online at
<http://www.fda.gov/AboutFDA/CentersOffices/
Officeofmedicalproductsandtobacco/CDER/ucm129385.htm> [last visited May 7,
2015].) Indeed, in its briefing Barr effectively concedes this is the case here:
―[E]ach day of early entry would have cost Bayer more given the price of its
branded product than it would have benefitted Barr given the price of its generic
product.‖

15

Actavis, supra, 570 U.S. at p. ___ [186 L.Ed.2d at pp. 361–362, 133 S.Ct.

at pp. 2234–2235]; see, e.g., Hovenkamp, Anticompetitive Patent Settlements and
the Supreme Court’s
Actavis Decision, supra, 15 Minn. J. L. Sci. & Tech. at pages
8–13; Mungan, Reverse Payments, Perverse Incentives (2013) 27 Harv. J. Law &
Tech. 1, 5–6, 27, 34; Elhauge & Krueger, Solving the Patent Settlement Puzzle
(2012) 91 Tex. L.Rev. 283, 289; Kades, Whistling Past the Graveyard: The
Problem with the Per Se Legality Treatment of Pay-for-Delay Settlements
(2009) 5


(footnote continued on next page)

37



share monopoly profits through a reverse payment from the brand to the generic,

the generic no longer has motivation to hold out for its best estimate of the average

entry point it could obtain through litigation. Instead, the parties‘ interests align in

favor of maximizing their combined wealth by extending the monopoly for as long

as possible. Once payment to the generic exceeds what the brand is otherwise

receiving from it in products and services or would have spent to litigate, a court

may fairly presume the settling parties have engaged in such conduct and should

be put to the burden of coming forward with a procompetitive justification for

their settlement. (Elhauge & Krueger, Solving the Patent Settlement Puzzle,

supra, 91 Tex. L.Rev. at pp. 297–304; see Edlin et al., Activating Actavis (2013)

28 Antitrust 16, 22, appen.; Lemley & Shapiro, Probabilistic Patents, supra, 19 J.

Econ. Perspectives at p. 93; Shapiro, Antitrust Limits to Patent Settlements, supra,

34 RAND J. Econ. at p. 408.)

Barr argues this degree of scrutiny will stifle innovation. But Congress was

not authorized to, and did not, grant inventors eternal monopolies; instead, it

approved a scheme that presumptively represents the appropriate balance between

promoting innovation and allowing competition. Reverse payment patent

settlements may enable the parties to extend the monopoly beyond that point.

(Elhauge & Krueger, Solving the Patent Settlement Puzzle, supra, 91 Tex. L.Rev.



(footnote continued from previous page)

Competition Policy Internat. 143, 148–150; Leffler & Leffler, Settling the
Controversy over Patent Settlements
in Antitrust Law and Economics (Kirkwood
edit., 2004) 475, 480–484; Willig & Bigelow, Antitrust Policy Toward Agreements
that Settle Patent Litigation
, supra, 49 Antitrust Bull. at page 659; Bulow, The
Gaming of Pharmaceutical Patents
in 4 Innovation Policy and the Economy,
supra, at page 166; Shapiro, Antitrust Limits to Patent Settlements, supra, 34
RAND J. Econ. at pages 394–395.

38



at pp. 295–304; Lemley & Shapiro, Probabilistic Patents, supra, 19 J. Econ.

Perspectives at p. 93; Leffler & Leffler, Efficiency Trade-Offs in Patent Litigation

Settlements: Analysis Gone Astray? (2004) 39 U.S.F. L.Rev. 33, 37–38; Shapiro,

Antitrust Analysis of Patent Settlements Between Rivals, supra, 17 Antitrust at

p. 73.) Indeed, insufficient scrutiny of such settlements has the potential to

hamper innovation by allowing weak patents to offer the exact same exclusionary

potential and monopoly possibilities as strong ones,16 thus steering innovator

incentives away from more costly true innovation and toward cheaper, less

socially valuable pseudoinnovation. (See Mungan, Reverse Payments, Perverse

Incentives, supra, 27 Harv. J. Law & Tech. at pp. 42–44; Elhauge & Krueger,

Solving the Patent Settlement Puzzle, at pp. 294–295.)

Relatedly, Barr expresses concern that close scrutiny of reverse payment

settlements will chill some generics from challenging patents, to the detriment of

consumers. But any challenge that results in the brand simply paying the generic

not to compete—a potentially common outcome absent scrutiny—does nothing to

enhance competition, and deterring such challenges accordingly represents no loss

to consumers. Moreover, standard economic theory suggests reducing unfettered

access to reverse payment settlements would chill generic challenges to strong,


16

See In re Tamoxifen Citrate Antitrust Litigation, supra, 466 F.3d at

page 211 (noting the ―troubling dynamic‖ that ―[t]he less sound the patent or the
less clear the infringement, and therefore the less justified the monopoly enjoyed
by the patent holder, the more a rule permitting settlement is likely to benefit the
patent holder by allowing it to retain the patent‖); Hemphill, An Aggregate
Approach to Antitrust: Using New Data and Rulemaking to Preserve Drug
Competition
, supra, 109 Colum. L.Rev. at page 638 (treating patents as
conclusively valid until expiration ―produces the absurd result that an ironclad
patent and a trivial patent have the same exclusionary force‖); Bulow, The Gaming
of Pharmaceutical Patents
in Innovation Policy and the Economy, Volume 4,
supra, at page 167.

39



likely valid patents more than challenges to weak patents. The effect would be to

increase the value of strong patents, while still leaving generics incentives to

challenge weak patents. (Mungan, Reverse Payments, Perverse Incentives, supra,

27 Harv. J. Law & Tech. at p. 7.) This consequence presents no reason to scale

back scrutiny of these settlements.

Finally, Barr argues that in some cases only a reverse payment can bridge

the differences between the brand and generic challenger and make settlement

possible. Perhaps; but as the Supreme Court has made clear, ordinarily ―the fact

that a large, unjustified reverse payment risks antitrust liability does not prevent

litigating parties from settling their lawsuit.‖ (Actavis, supra, 570 U.S. at p. ___

[186 L.Ed.2d at p. 363, 133 S.Ct. at p. 2237].) Parties can still use financial

considerations to bridge small gaps arising from differing subjective perceptions

of their probabilities of success in litigation; what they cannot do is use money to

bridge their differences over the point when competitive entry is economically

desirable, for that gap is not one antitrust law permits would-be competitors to

bridge by agreement: ―If the basic reason [the parties prefer a reverse payment

settlement] is a desire to maintain and to share patent-generated monopoly profits,

then, in the absence of some other justification, the antitrust laws are likely to

forbid the arrangement.‖ (Ibid.) That some settlements might no longer be

possible absent a payment in excess of litigation costs is no concern if the ones

now barred would simply have facilitated the sharing of monopoly profits.

Barr relies on one commentary showing that some theoretically possible

settlements involving payments exceeding the sum of expected litigation costs and

the value of other products and services might enhance consumer welfare. (Harris

et al., Activating Actavis: A More Complete Story (2014) 28 Antitrust 83.) The

principal conclusion is that introducing brand risk aversion into the settlement

model opens up a region of possible settlements involving supralitigation cost

40



payments that nevertheless increase consumer welfare by enabling earlier generic

market entry dates.17 What is not shown is that such settlements are at all likely in

practice. Although a brand and generic may through payment of money be able to

settle on an earlier entry date than would arise from litigation, their incentive (if

left undeterred by the antitrust regime) remains to settle on a far later entry date

for still larger sums of money, as even some of the leading economists

highlighting the relevance of risk aversion recognize. (Willig & Bigelow,

Antitrust Policy Toward Agreements that Settle Patent Litigation, supra, 49

Antitrust Bull. at p. 659.) Attempts to quantitatively estimate the frequency with

which risk aversion would produce an efficient settlement despite payment in

excess of litigation costs suggest such occurrences would be exceedingly rare.

(Leffler & Leffler, The Probabilistic Nature of Patent Rights, supra, 17 Antitrust

at pp. 79–80; Leffler & Leffler, Settling the Controversy over Patent Settlements

in Antitrust Law and Economics, supra, at p. 504; see Bulow, The Gaming of

Pharmaceutical Patents in 4 Innovation Policy and the Economy, supra, at

p. 167.) Thus, while we do not discount the possibility, it affords no reason to

expand plaintiff‘s prima facie case beyond the elements discussed.

We also observe that the outlined prima facie showing will suffice, without

more, to raise a presumption of the patentee‘s market power. Proving that a

restraint has anticompetitive effects often requires the plaintiff to ― ‗delineate a


17

The Harris model also addresses the effects of asymmetric information, but

different perspectives on the likelihood of success are unlikely to alone render it
possible for a supralitigation-costs reverse payment settlement to be efficient.
(Elhauge & Krueger, Solving the Patent Settlement Puzzle, supra, 91 Tex. L.Rev.
at pp. 300–303, 325–329.) Money may be needed to bridge the gap between the
parties‘ expectations, but a rational brand asked to pay more than its litigation
costs to persuade a generic with different perceptions would, in the ordinary case,
presumably just litigate.

41



relevant market and show that the defendant plays enough of a role in that market

to impair competition significantly,‘ ‖ i.e., has market power. (Roth v. Rhodes,

supra, 25 Cal.App.4th at p. 542.) Here, proof of a sufficiently large payment is a

surrogate: ―the ‗size of the payment from a branded drug manufacturer to a

prospective generic is itself a strong indicator of power‘—namely, the power to

charge prices higher than the competitive level.‖ (Actavis, supra, 570 U.S. at

p. ___ [186 L.Ed.2d at p. 362, 133 S.Ct. at p. 2236].) Logically, a patentee would

not pay others to stay out of the market unless it had sufficient market power to

recoup its payments through supracompetitive pricing. (Ibid.) Consequently,

proof of a reverse payment in excess of litigation costs and collateral products and

services raises a presumption that the settling patentee has market power sufficient

for the settlement to generate significant anticompetitive effects.

2.

Defendants‘ Rebuttal

Once a plaintiff has made out a prima facie case that a reverse payment

patent settlement has anticompetitive effects, a court ―must weigh these

anticompetitive effects against the possible justifications‖ for the challenged

restraint. (Marin County Bd. of Realtors, Inc. v. Palsson, supra, 16 Cal.3d at

p. 937.) At this point, we deem it appropriate to shift the burden to the defendants

to offer legitimate justifications and come forward with evidence that the

challenged settlement is in fact procompetitive. (See Bus. & Prof. Code, § 16725

[―[i]t is not unlawful to enter‖ an agreement ―to promote, encourage, or increase

competition‖]; Actavis, supra, 570 U.S. at p. ___ [186 L.Ed.2d at p. 362, 133 S.Ct.

42



at p. 2236] [―An antitrust defendant may show in the antitrust proceeding that

legitimate justifications are present.‖].)18

Plaintiffs argue we should declare every reverse payment in excess of

litigation costs and collateral products and services a per se violation of the

Cartwright Act. We are unwilling to declare every settlement payment of a certain

size illegal. Like the United States Supreme Court, we cannot say with reasonable

certainty—yet—that we have posited every possible justification that might render

a particular reverse payment settlement procompetitive. (See Actavis, supra, 570

U.S. at p. ___ [186 L.Ed.2d at p. 362, 133 S.Ct. at p. 2236].) The theoretical

possibility that a settlement in excess of litigation costs and collateral services

could be procompetitive, while insufficient to alter the plaintiff‘s prima facie case,

is nevertheless sufficient for us to reject a categorical rule and instead afford

defendants the opportunity to demonstrate a given settlement is the exception.

This does not mean any justification will do. An antitrust defendant cannot

argue a settlement is procompetitive simply because it allows competition earlier

than would have occurred if the brand had won the patent action; as Actavis and

our previous discussion make clear, the relevant baseline is the average period of

competition that would have obtained in the absence of settlement. (See Actavis,

supra, 570 U.S. at p. ___ [186 L.Ed.2d at p. 363, 133 S.Ct. at p. 2236].)19


18

See also FTC v. Indiana Federation of Dentists, supra, 476 U.S. at

pages 459–461; National Soc. of Professional Engineers v. United States, supra,
435 U.S. at page 693; 7 Areeda & Hovenkamp, Antitrust Law (3d ed. 2010)
¶¶ 1504b, 1507c, pages 402–403, 430.

19

This point also addresses Barr‘s argument that causation is lacking in

reverse payment cases because absent a settlement, the parties would have
litigated, the patentee would likely or surely have won, and consumers would have
been no better off. At the time of settlement, the outcome of future litigation is
uncertain, and an agreement that ―seeks to prevent the risk of competition‖ causes,


(footnote continued on next page)

43



Likewise, consideration of whether the agreement is justified as

procompetitive will not turn on whether the patent would ultimately have been

proved valid or invalid. Agreements must be assessed as of the time they are

made (Valley Drug Co. v. Geneva Pharmaceuticals, supra, 344 F.3d at p. 1306), at

which point the patent‘s validity is unknown and unknowable. Just as later

invalidation of a patent does not prove an agreement when made was

anticompetitive (id. at pp. 1306–1307), later evidence of validity will not

automatically demonstrate an agreement was procompetitive.20 Antitrust law

condemns the purchase of freedom from competition; what matters is whether a

settlement postpones market entry beyond the average point that would have been

expected at the time in the absence of agreement. (See In re Aggrenox Antitrust

Lit. (D. Conn., Mar. 23, 2015, No. 3:14-md-2516 (SRU)) __ F.Supp.3d __ [2015

U.S.Dist. Lexis 35634, *38] [―The salient question is not whether the fully-

litigated patent would ultimately be found valid or invalid—that may never be

known—but whether the settlement included a large and unjustified reverse

payment leading to the inference of profit-sharing to avoid the risk of

competition.‖].)

To determine whether such a settlement has occurred under state law, as

under federal law, ―it is normally not necessary to litigate patent validity.‖

(Actavis, supra, 570 U.S. at p. ___ [186 L.Ed.2d at p. 363, 133 S.Ct. at p. 2236].)



(footnote continued from previous page)

i.e., has as a ―consequence . . . the relevant anticompetitive harm.‖ (Actavis,
supra, 570 U.S. at p. ___ [186 L.Ed.2d at p. 363, 133 S.Ct. at p. 2236].)

20

Some kinds of evidence may also be suspect: once a brand and generic

challenger settle, their incentives align in favor of arguing that the patent was
stronger and more clearly infringed than it may have appeared at the time.

44



―An unexplained large reverse payment itself would normally suggest that the

patentee has serious doubts about the patent‘s survival. And that fact, in turn,

suggests that the payment‘s objective is to maintain supracompetitive prices to be

shared among the patentee and the challenger rather than face what might have

been a competitive market—the very anticompetitive consequence that underlies

the claim of antitrust unlawfulness. . . . In a word, the size of the unexplained

reverse payment can provide a workable surrogate for a patent‘s weakness, all

without forcing a court to conduct a detailed exploration of the validity of the

patent itself.‖ (Id. at p. ___ [186 L.Ed.2d at p. 363, 133 S.Ct. at pp. 2236–2237].)

3.

The Plaintiff‘s Ultimate Burden

The ultimate burden throughout rests with the plaintiff to show that a

challenged settlement agreement is anticompetitive. (Bert G. Gianelli Distributing

Co. v. Beck & Co. (1985) 172 Cal.App.3d 1020, 1048.) Once the plaintiff has

made out a prima facie case that a reverse payment patent settlement is

anticompetitive, however, the plaintiff thereafter need only show that any

procompetitive justifications proffered by the defendants are unsupportable. (See

Polygram Holding, Inc. v. FTC, supra, 416 F.3d at pp. 37–38.)

The ultimate question in reverse payment settlement cases is whether an

agreement involves ―significant unjustified anticompetitive consequences.‖

(Actavis, supra, 570 U.S. at p. ___ [186 L.Ed.2d at p. 364, 133 S.Ct. at p. 2238].)

The prima facie case requires the plaintiff to eliminate the possibility that litigation

costs or other products or services could explain the consideration paid the

generic. If a plaintiff does so and thereafter can dispel each additional justification

the defendants put forward to explain the consideration, the conclusion follows

that the settlement payment must include, in part, consideration for additional

delay in entering the market. That payment for delay is condemned by the

45



Cartwright Act, as by federal antitrust law, and its purchase as part of a settlement

agreement is an unlawful restraint of trade.

* * *

We summarize the structure of the rule of reason applicable to reverse

payment patent settlements. To make out a prima facie case that a challenged

agreement is an unlawful restraint of trade, a plaintiff must show the agreement

contains both a limit on the generic challenger‘s entry into the market and

compensation from the patentee to the challenger. The defendants bear the burden

of coming forward with evidence of litigation costs or valuable collateral products

or services that might explain the compensation; if the defendants do so, the

plaintiff has the burden of demonstrating the compensation exceeds the reasonable

value of these. If a prima facie case has been made out, the defendants may come

forward with additional justifications to demonstrate the settlement agreement

nevertheless is procompetitive. A plaintiff who can dispel these justifications has

carried the burden of demonstrating the settlement agreement is an unreasonable

restraint of trade under the Cartwright Act.

D.

Preemption

Barr argues federal preemption concerns narrowly constrain how reverse

payment patent settlements must be analyzed under state law. According to Barr,

any rule more stringent than the traditional, unstructured rule of reason would fall

prey to obstacle preemption, which ―arises when ‗ ―under the circumstances of [a]

particular case, [the challenged state law] stands as an obstacle to the

accomplishment and execution of the full purposes and objectives of

Congress.‖ ‘ ‖ (Viva! Internat. Voice for Animals v. Adidas Promotional Retail

Operations, Inc. (2007) 41 Cal.4th 929, 936.) We disagree; the rule we adopt is in

harmony with Actavis, which offered only broad outlines and explicitly left to

46



other courts the task of developing a framework for analyzing the anticompetitive

effects of reverse payment patent settlements. (Actavis, supra, 570 U.S. at p. ___

[186 L.Ed.2d at p. 364, 133 S.Ct. at p. 2238].)

State antitrust law ordinarily is fully compatible with federal law. States

have regulated against monopolies and unfair competition for longer than the

federal government, and federal law is intended only ―to supplement, not displace,

state antitrust remedies.‖ (California v. ARC America Corp. (1989) 490 U.S. 93,

102; see id. at pp. 101–102 & fn. 4; Partee v. San Diego Chargers Football Co.

(1983) 34 Cal.3d 378, 382.) ―[T]he Cartwright Act is broader in range and deeper

in reach than the Sherman Act‖ (Cianci v. Superior Court, supra, 40 Cal.3d at

p. 920); this greater domain has never been thought to pose supremacy clause

problems. To the contrary, in light of the established state role, a presumption

against preemption applies. (ARC America Corp., at p. 101.)

Barr argues that to avoid conflicting with federal patent law, state antitrust

law must cohere with the federal rule that patents are presumed valid. (See 35

U.S.C. § 282.) But as we have discussed, the Patent Act‘s allocation of a burden

of proof is no more than a procedural device. It does not insulate settlements of

patent disputes from federal antitrust scrutiny (Actavis, supra, 570 U.S. at p. ___

[186 L.Ed.2d at p. 356, 133 S.Ct. at pp. 2230–2231]), nor does it insulate them

from state antitrust scrutiny. The agnostic stance toward patent validity our

structured rule of reason adopts is identical to that embraced by the United States

Supreme Court under federal antitrust law: a patent may or may not be valid or

infringed. (Ibid.) What matters instead is simply whether a payoff to eliminate

the possibility of competition has occurred. (Id. at p. ___ [186 L.Ed.2d at p. 363,

133 S.Ct. at p. 2236.) If federal antitrust law can conduct that inquiry without

offense to patent law, so too can the state antitrust law it was designed to

supplement.

47



Additionally, Barr argues the rule we adopt must be no more favorable to

reverse payment patent settlement challenges than would be the case under

Actavis. The supposed rationale is that Actavis identifies precisely the

accommodation patent law requires of antitrust law, such that deviation would

pose an obstacle to congressional patent objectives.

If Actavis had established a special rule limiting antitrust scrutiny of reverse

payment settlements in order to preserve the incentives created by the patent

system, we might agree. But the lesson of Actavis is that nothing in the patent

laws or the Hatch-Waxman Act dictates such a special rule; that a settlement

resolves a patent dispute does not ―immunize the agreement from antitrust attack.‖

(Actavis, supra, 570 U.S. at p. ___ [186 L.Ed.2d at p. 356, 133 S.Ct. at p. 2230].)

Instead, such agreements may, like any other form of agreement restraining trade,

be examined for unjustified anticompetitive effects. (Id. at p. ___ [186 L.Ed.2d at

p. 364, 133 S.Ct. at p. 2238].) As for how such an examination is to be conducted,

Actavis reverts solely to antitrust considerations. (Id. at p. ___ [186 L.Ed.2d at

p. 364, 133 S.Ct. at pp. 2237–2238].) In selecting a test to apply—to the extent

the Supreme Court does, as opposed to ―leav[ing] to the lower courts the

structuring of the present rule-of-reason antitrust litigation‖ (id. at p. ___ [186

L.Ed.2d at p. 364, 133 S.Ct. at p. 2238])—the Court looks to whether its

experience with the economics of reverse payment settlements is sufficient to

allow it, yet, to require particular modifications to rule-of-reason analysis (id. at

p. ___ [186 L.Ed.2d at p. 363, 133 S.Ct. at p. 2237]).

Where the choice of a test rests solely on economic analysis, no patent law

preemption concerns arise. Instead, the issue reduces to a problem in the relation

between federal and state antitrust law, and there the Supreme Court has been

quite clear that states may depart from federal rules—or, here, accept an invitation

to develop a gap in the law explicitly left by the Supreme Court—absent evidence

48



of a clear congressional purpose to the contrary. (California v. ARC America

Corp., supra, 490 U.S. at p. 103.)

We note as well that the structured rule of reason we adopt is consistent

with, not an obstacle to, congressional patent and health care goals in two specific

ways. First, considerable research and analysis suggests the broad availability of

reverse payment settlements favors weak patents and channels investment

resources toward suboptimal innovation prospects. (See ante, pp. 38–39.) To the

extent careful scrutiny of such settlements promotes the very innovation the patent

laws were intended to promote, it cannot stand as an obstacle to congressional

objectives.

Second, a fundamental goal of the Hatch-Waxman Act is to enhance

generic competition and thereby lower prices. Congress rued the ―serious anti-

competitive effects‖ of existing rules for generic drug approval, rules that resulted

in ―the practical extension of the monopoly position of the patent holder beyond

the expiration of the patent.‖ (H.R.Rep. No. 98-857, 2d Sess., pt. 2, p. 4 (1984),

reprinted in 1984 U.S. Code Cong. & Admin. News, p. 2688.) The substantial

reworking of those rules to ease generic approval was designed to ―make available

more low cost generic drugs‖ (Id., pt. 1, p. 14, reprinted in 1984 U.S. Code Cong.

& Admin. News, p. 2647) and reduce costs for consumers and government-funded

health care alike (id. at p. 17, reprinted in 1984 U.S. Code Cong. & Admin. News,

p. 2650). By ferreting out anticompetitive agreements that limit generic market

entry and sustain costly monopolies, a structured rule of reason serves those goals

and poses no obstacle to congressional objectives.21


21

A second federalism concern raised by the Court of Appeal, that state

antitrust scrutiny would intrude on the exclusivity of federal court patent
jurisdiction (see 28 U.S.C. § 1338(a)), likewise presents no issue. This exclusive


(footnote continued on next page)

49



E.

Application

The trial court and Court of Appeal treated the ‘444 patent as ironclad and

used the entire period until its expiration as the relevant benchmark in order to

assess whether the parties‘ settlement agreement had anticompetitive effects. This

was error.

Barr argues we nevertheless should affirm because in the course of their

respective opinions the trial court and Court of Appeal purported to apply the rule

of reason in addition to the scope of the patent test. But the rule of reason these

courts applied is not the structured rule of reason for reverse payment patent

settlements we articulate today to effectuate the purposes of the Cartwright Act.

Rather, in each instance the courts simply concluded that because the agreement

did not exclude competition beyond what the ‘444 patent would have permitted

(assuming it were valid), the agreement necessarily had no anticompetitive effect

and was not unlawful under the rule of reason. The same misapprehension

underlying the lower courts‘ scope of the patent analysis, that for antitrust

purposes patents are ironclad, also underlay their rule of reason analysis.

Accordingly, we must reverse.



(footnote continued from previous page)

jurisdiction does not prevent state courts from deciding state law claims
incidentally touching on the validity of a patent. (Caldera Pharmaceuticals, Inc.
v. Regents of University of California
(2012) 205 Cal.App.4th 338, 353–356.)
Moreover, the ―slim category‖ of state law claims subject to exclusive federal
patent jurisdiction includes only those that ― ‗necessarily raise‘ ‖ a federal patent
issue. (Gunn v. Minton (2013) 568 U.S. ___, ___ [185 L.Ed.2d 72, 79, 133 S.Ct.
1059, 1065].) As we have discussed, it is entirely possible to resolve an antitrust
challenge to a reverse payment patent settlement without adjudicating the patent‘s
validity.

50



V.

Unfair Competition Law and Common Law Monopoly Claims

The trial court entered judgment against plaintiffs on their unfair

competition and common law monopoly claims using the same reasoning it

applied to the Cartwright Act claim. Because that reasoning was erroneous, we

reverse on these claims as well.

51



DISPOSITION

We reverse the Court of Appeal‘s judgment and remand for further

proceedings consistent with this opinion.













WERDEGAR, J.

WE CONCUR:


CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.


52



See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Cipro Cases I & II
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 200 Cal.App.4th 442
Rehearing Granted

__________________________________________________________________________________

Opinion No.
S198616
Date Filed: May 7, 2015
__________________________________________________________________________________

Court:
Superior
County: San Diego
Judge: Richard E. L. Strauss

__________________________________________________________________________________

Counsel:

Lieff, Cabraser, Heimann & Bernstein, Eric B. Fastiff, Brendan Glackin, Jordan Elias, Dean M. Harvey;
Joseph Saveri Law Firm, Joseph R. Saveri, Lisa J. Leebove; Krause, Kalfayan, Benink & Slavens, Ralph B.
Kalfayan; Zwerling, Schachter & Zwerling, Dan Drachler; Durie Tangri and Mark A. Lemley for Plaintiffs
and Appellants.

The Kralowec Law Group and Kimberly A. Kralowec for Consumer Attorneys of California as Amicus
Curiae on behalf or Plaintiffs and Appellants.

Michael A. Carrier; Zelle Hofmann Voelbel & Mason and Judith A. Zahid for 49 Professors as Amici
Curiae on behalf or Plaintiffs and Appellants.

Mark A. Lemley for 78 Intellectual Property Law, Antitrust Law, Economics and Business Professors as
Amici Curiae on behalf or Plaintiffs and Appellants.

Richard M. Brunell; Zelle Hofmann Voelbel & Mason and Judith A. Zahid for American Antitrust Institute
as Amicus Curiae on behalf or Plaintiffs and Appellants.

Edleson & Rezzo, Joann F. Rezzo; Karcher Harmes, Kathryn E. Karcher; Stinson Morrison Hecker,
Stinson Leonard Street, David E. Everson, Heather S. Woodson and Victoria L. Smith for Defendants and
Respondents Hoechst Marion Roussel, Inc., The Rugby Group, Inc., and Watson Pharmaceuticals, Inc.

Luce, Forward, Hamilton & Scripps, McKenna Long & Aldridge, Charles A. Bird, Christopher J. Healey,
Todd R. Kinnear; Jones Day, Kevin D. McDonald; Bartlit Beck Herman Palenchar & Schott and Peter B.
Bensinger, Jr., for Defendant and Respondent Bayer Corporation.

Kirkland & Ellis, Jay P. Lefkowitz, Edwin John U, Karen N. Walker and Gregory L. Skidmore for
Defendant and Respondent Barr Laboratories, Inc.





1






Page 2 – counsel continued – S198616




Counsel:

Richard A. Samp, Cory L. Andrews; Law Offices of Mark E. Foster and Mark E. foster for Washington
Legal Foundation as Amicus Curiae on behalf of Defendants and Respondents.

Munger , Tolles & Olson, Jeffrey I. Weinberger, Adam R. Lawton, Guha Krishnamurthi, Rohit K. Singla
and Michelle T. Friedland for The Chamber of Commerce of the United States of America as Amicus
Curiae on behalf of Defendants and Respondents.

Stevens & Lee, Joseph Wolfson; Duane Morris and Paul J. Killion for Generic Pharmaceutical Association
as Amicus Curiae on behalf of Defendants and Respondents.

Kamala D. Harris, Attorney General, Edward C. DuMont, State Solicitor General, Kathleen E. Foote,
Assistant Attorney General, Janill L. Richards, Deputy State Solicitor General, and Cheryl L. Johnson,
Deputy Attorney General, for California Attorney General, as Amicus Curiae.





2







Counsel who argued in Supreme Court (not intended for publication with opinion):

Mark A. Lemley
Durie Tangri
217 Leidesdorff Street
San Francisco, CA 94111
(415) 362-6666

Edwin John U
Kirkland & Ellis
655 Fifteenth Street, N.W.
Washington, D.C. 20005
(202) 879-5000


3

Opinion Information
Date:Docket Number:
Thu, 05/07/2015S198616