Circuit Judges
Circuit Judges
I.
Background
A.
Facts1
has expired, (iii) of the date on which such patent will expire,
or (iv) that such patent is invalid or will not be infringed by
the manufacture, use, or sale of the new drug for which the
application is submitted . Id. 355(b)(2)(A)(i)-(iv).
Rather than conducting its own clinical studies, Reliant
depended on the data of another, already approved,
fenofibrate drug called TriCor, which was developed by a
French company named Laboratories Fournier (Fournier)
and distributed by Abbott in the United States.5 Antara
received FDA approval in November 2004, and Reliant began
marketing the drug in February 2005. Reliant chose not to
make a certification under 505(b)(2)(A)(iv) that Antara did
not infringe any patents in the Orange Book or that those
patents were invalid, but elected to market Antara
immediately after gaining FDA approval.6 That marketing
exposed Reliant to a possible infringement suit from Abbott,
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Procedural History
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II.
Discussion14
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Abbotts argument relies heavily on our nonprecedential opinion in SigmaPharm, Inc. v. Mutual Pharm.
Co., 454 F. Appx 64 (3d Cir. 2011). We do not address that
case, see 3d Cir. I.O.P. 5.7 (2010) (The court by tradition
does not cite to its not precedential opinions as authority.),
but instead look to the case upon which SigmaPharm rests its
reasoning, our precedential opinion in Barton & Pittinos.
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services that they offered, the nursing homes could not have
switched to [Barton & Pittinos]. Id. at 183.
We concluded that Barton & Pittinoss position as an
advertiser made its injury different from the type of injury
that the antitrust laws were designed to redress. See id. at 184
(Because [Barton & Pittinos] was thus not a competitor or
consumer in the market in which trade was allegedly
restrained by the antitrust violations pled by [Barton &
Pittinos], we hold that [its] alleged injury is not antitrust
injury, meaning injury of the type that the antitrust statute
was intended to forestall. (quoting Associated Gen.
Contractors, 459 U.S. at 540)). Barton & Pittinos thus lacked
antitrust standing.
In contrast to Barton & Pittinos, we concluded in
Carpet Group International that a plaintiff did have antitrust
standing. Carpet Grp. Intl, 227 F.3d at 78. In that case,
Carpet Group International sought to provide a direct link
between oriental rug manufacturers and domestic retailers,
cutting out middlemen wholesalers, who were united by a
trade group, the Oriental Rug Importers Association. Carpet
Group International bypassed the wholesalers by inviting
manufacturers and retailers to trade shows where the retailers
could buy directly from the manufacturers. Carpet Group
International also organized buying trips where the retailers
could go abroad to see and directly purchase rugs. Oriental
Rug Importers responded by, among other tactics, threatening
not to buy from any manufacturer who attended a trade show
or sold directly to a retailer during a buying trip. Those
actions prompted Carpet Group International to bring an
antitrust action.
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IV.
Conclusion
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