# USCA4 Appeal: 26-1473

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URL: https://www.frixlaw.com/law-library/documents/agency%3Aftc%3A9c5627868d82d136

## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

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No. 26-1473
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
––––––––––––––––––––––––––––––––––––––––––––
CAREFIRST OF MARYLAND, INC.; GROUP HOSPITALIZATION
AND MEDICAL SERVICES, INC.; CAREFIRST BLUECHOICE, INC.,
on behalf of themselves and all others similarly situated,
Plaintiffs-Appellees,
v.
AMGEN INC.; IMMUNEX CORPORATION;
AMGEN MANUFACTURING LIMITED LLC,
Defendants-Appellants.
–––––––––––––––––––––––––––––––––––––––––––––
On Appeal from the United States District Court for the
Eastern District of Virginia
No. 2:24-cv-00484 (Hon. Arenda L. Wright Allen)
–––––––––––––––––––––––––––––––––––––––––––––
BRIEF OF THE FEDERAL TRADE COMMISSION
AS AMICUS CURIAE IN SUPPORT OF NEITHER PARTY
–––––––––––––––––––––––––––––––––––––––––––––
LUCAS CROSLOW
General Counsel
H. THOMAS BYRON III
Deputy General Counsel
Of Counsel:
DANIEL W. BUTRYMOWICZ
ANUPAMA SAWKAR
Attorneys
FEDERAL TRADE COMMISSION
Washington, D.C. 20580

ROBERT A. SILVERSTEIN
Attorney
FEDERAL TRADE COMMISSION
600 Pennsylvania Ave. NW
Washington, D.C. 20580
(202) 325-2488
rsilverstein@ftc.gov

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TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... ii
INTRODUCTION AND SUMMARY ......................................................................1
INTEREST OF AMICUS CURIAE ..........................................................................3
BACKGROUND .......................................................................................................4
ARGUMENT .............................................................................................................6
I. Acquisitions of Patent Applications Are Not Immune from Antitrust
Scrutiny. .................................................................................................................7
A.

B.

Pending Patent Applications, Like Issued Patents, Raise
Competitive Concerns. ..........................................................................8
1.

Acquiring a patent application can constitute anticompetitive
conduct. .......................................................................................8

2.

Amgen’s attempts to distinguish patent applications from
patents fall short..........................................................................13

Recognizing Liability Here Will Not Stifle Innovation. .....................16

II. Amgen’s Acquisition Is Not Protected under Noerr-Pennington. ................18
A.

B.

Noerr-Pennington Protects the Enforcement of Patents Through
Litigation, But Not the Underlying Acquisition of Patents or
Patent Applications. ............................................................................19
1.

Noerr-Pennington does not protect commercial transactions
distinct from petitioning............................................................19

2.

Breaking with the above precedent would cause serious and
far-reaching practical problems. ...............................................23

3.

Amgen confuses antitrust violations with injury. .....................25

The Noerr-Pennington Doctrine Does Not Categorically
Immunize the Acquisition of Rights to a Patent Application. ............26

CONCLUSION ........................................................................................................30

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TABLE OF AUTHORITIES
CASES
A.D. Bedell Wholesale Co. v. Philip Morris Inc.,
263 F.3d 239 (3d Cir. 2001) ..............................................................................21
Allied Tube & Conduit Corp. v. Indian Head, Inc.,
486 U.S. 492 (1988) .................................................................................... 19, 24
Amphastar Pharms., Inc. v. Momenta Pharms., Inc.,
850 F.3d 52 (1st Cir. 2017) ......................................................................... 20, 21
Aronson v. Quick Point Pencil,
440 U.S. 257 (1979) ...........................................................................................17
Aspen Skiing Co. v. Aspen Highlands Skiing Corp.,
472 U.S. 585 (1985) .............................................................................................7
Atl. Richfield Co. v. USA Petroleum Co.,
495 U.S. 328 (1990) ...........................................................................................25
Baltimore Scrap Corp. v. David J. Joseph Co.,
237 F.3d 394 (4th Cir. 2001) ...................................................................... 27, 28
California v. Am. Stores Co.,
495 U.S. 271 (1990) ...........................................................................................26
Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc.,
690 F.2d 1240 (9th Cir. 1982) ...........................................................................20
Coastal States Mktg., Inc. v. Hunt,
694 F.2d 1358 (5th Cir. 1983) ...........................................................................27
Columbia Steel Casting Co., Inc. v. Portland Gen. Elec. Co.,
111 F.3d 1427 (9th Cir. 1996) ...........................................................................21
Duke Energy Carolinas, LLC v. NTE Carolinas II, LLC,
111 F.4th 337 (4th Cir. 2024) ..............................................................................7
E. R.R. Presidents Conf. v. Noerr Motor Freight, Inc.,
365 U.S. 127 (1961) ...........................................................................................18
FTC v. AbbVie, Inc.,
976 F.3d 327 (3d Cir. 2020) ................................................................................3
FTC v. Actavis, Inc.,
570 U.S. 136 (2013)................................................................................ 3, 14, 25

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FTC v. Edwards Lifesciences Corp.,
No. 25-2569, 2026 WL 228723 (D.D.C. Jan. 28, 2026) ...................... 14, 15, 29
FTC v. Facebook, Inc.,
581 F. Supp. 3d 34 (D.D.C. 2022) .......................................................................5
FTC v. Superior Ct. Trial Laws. Ass’n,
493 U.S. 411 (1990) ...........................................................................................19
Fuel Automation Station, LLC v. Energera Inc.,
119 F.4th 1214 (10th Cir. 2024) ..........................................................................5
Grp. Life & Health Ins. Co. v. Royal Drug Co.,
440 U.S. 205 (1979) ...................................................................................... 2, 22
Handgards, Inc. v. Ethicon, Inc.,
601 F.2d 986 (9th Cir. 1979) .............................................................................24
Hartford-Empire Co. v. United States,
323 U.S. 386 (1945) .............................................................................................8
In re Cipro Cases I & II,
61 Cal. 4th 116 (2015) .......................................................................................14
In re Oetiker,
977 F.2d 1443 (Fed. Cir. 1992) .........................................................................16
Mayor of Baltimore v. AbbVie Inc.,
42 F.4th 709 (7th Cir. 2022) ..............................................................................23
McGuire Oil Co. v. Mapco, Inc.,
958 F.2d 1552 (11th Cir. 1992) .........................................................................22
Navient Sols., LLC v. Lohman,
136 F.4th 518 (4th Cir. 2025) ............................................................... 26, 27, 29
Octane Fitness, LLC v. ICON Health & Fitness, Inc.,
572 U.S. 545 (2014) ...........................................................................................18
Premier Elec. Const. Co. v. Nat’l Elec. Contractors Ass’n, Inc.,
814 F.2d 358 (7th Cir. 1987) .............................................................................22
PrimeTime 24 Joint Venture v. Nat’l Broad. Co., Inc.,
219 F.3d 92 (2d Cir. 2000) ................................................................................20
SCM Corp. v. Xerox Corp.,
645 F.2d 1195 (2d Cir. 1981) ..............................................................................7
Sosa v. DIRECTV, Inc.,
437 F.3d 923 (9th Cir. 2006) .............................................................................27
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United Mine Workers v. Pennington,
381 U.S. 657 (1965) .................................................................................... 19, 20
United States v. Microsoft Corp.,
253 F.3d 34 (D.C. Cir. 2001) .............................................................................14
United States v. Singer Mfg. Co.,
374 U.S. 174 (1963) .............................................................................................8
Waugh Chapel S., LLC v. United Food & Com. Workers Union Loc. 27,
728 F.3d 354 (4th Cir. 2013) .............................................................................18
STATUTES
15 U.S.C. § 1 ..............................................................................................................9
15 U.S.C. § 2 ..............................................................................................................9
15 U.S.C. § 15 ............................................................................................................9
15 U.S.C. § 18a ..........................................................................................................5
15 U.S.C. §§ 41 et seq................................................................................................3
35 U.S.C. § 102 ........................................................................................................16
35 U.S.C. § 120 ........................................................................................................11
35 U.S.C. § 131 ........................................................................................................16
35 U.S.C. § 151 ........................................................................................................16
OTHER AUTHORITIES
Amphastar Pharms., Inc. v. Momenta Pharms., Inc.,
No. 16-2113, Doc. 00117081683 (1st Cir. Nov. 7, 2016) ...................................3
Commission Opinion,
In re Illumina, Inc., FTC Dkt. No. 9401, (Apr. 3, 2023) ...................................15
Decision & Order,
In re AbbVie Inc, FTC Dkt. No. C-4713 (Sept. 4, 2020)...................................15
Decision & Order,
In re Elanco Animal Health Inc., FTC Dkt. No. C-4725
(Sept. 11, 2020) ..................................................................................................15
Donald S. Chisum, Chisum on Patents § 13.01 (vol. 4A 2026) ..............................11
Erik Hovenkamp & Herbert Hovenkamp, Buying Monopoly:
Antitrust Limits on Damages for Externally Acquired
Patents, 25 Tex. Intell. Prop. L.J. 39 (2017) .............................................. 17, 18
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FTC Office of Policy Planning, Enforcement Perspectives on
the Noerr-Pennington Doctrine: An FTC Staff Report
(2006) ...................................................................................................................3
FTC Office of Policy Planning, Report of the State Action Task
Force (Sept. 2003) ...............................................................................................3
FTC, The Evolving IP Marketplace: Aligning Patent Notice and
Remedies with Competition (Mar. 2011) .................................................... 10, 13
FTC, To Promote Innovation: The Proper Balance of
Competition and Patent Law and Policy (Oct. 2003) .......................................12
Initial Decision,
In re Illumina, Inc., FTC Dkt. No. 9401 (Sept. 9, 2022) ...................................15
Intell. Ventures I LLC v. Cap. One Fin. Corp.,
No. 18-1367 (Fed. Cir. May 11, 2018), Dkt. 41 ..................................................3
Mark A. Lemley & Kimberly A. Moore, Ending Abuse of
Patent Continuations,
84 B.U. L. Rev. 63 (2004) .................................................................... 10, 12, 13
Mark A. Lemley and Carl Shapiro, Probabilistic Patents,
19 J. of Econ. Persps. 75 (2005) ........................................................................14
Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law (2025) ..............................8
Tun-Jen Chiang, Fixing Patent Boundaries,
108 Mich. L. Rev. 523 (2010) .................................................................... 10, 13
U.S. DOJ & FTC, Antitrust Guidelines for the Licensing of
Intellectual Property (Jan. 12, 2017) ............................................................ 3, 16
REGULATIONS
16 C.F.R. § 801.2 .......................................................................................................6

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INTRODUCTION AND SUMMARY
Most acquisitions and licensing arrangements for patent rights or patent
applications simply transfer rights from one party to another without changing
overall competitive conditions. But courts have long recognized that acquiring a
patent can violate the antitrust laws if it increases the purchaser’s market power.
This concern is particularly acute when an acquisition or license transfers rights
between actual or potential competitors with intellectual property (“IP”) covering
the same product. The Federal Trade Commission (“FTC”) and Department of
Justice (“DOJ”) routinely review acquisitions of, or exclusive licenses to, patents
and patent applications to screen for such anticompetitive effects.
This interlocutory appeal threatens to upend that long-settled framework.
Defendants Amgen, Inc., Immunex Corporation, and Amgen Manufacturing
Limited LLC (collectively, “Amgen”) acquired exclusive rights to patents and
patent applications from a potential competitor, extending Amgen’s monopoly on
the drug Enbrel (etanercept) by fifteen years. The district court correctly rejected
Amgen’s arguments that (1) acquisitions of patent applications—as opposed to
issued patents—should be per se legal under the antitrust laws, and (2) this private
commercial transaction should be shielded under the Noerr-Pennington doctrine
because Amgen subsequently prosecuted the patent applications and sued in court
to enjoin competitors from the market.

1

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“It is well settled that exemptions from the antitrust laws are to be narrowly
construed.” Grp. Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 231
(1979). Amgen’s novel and sweeping arguments find no support in case law and, if
accepted, would pose a substantial threat to competition.
First, acquisitions of patent applications are not categorically immune from
antitrust scrutiny. The acquisition of IP rights indisputably can constitute
anticompetitive conduct. And there is no meaningful antitrust distinction between
the acquisition of a patent and the acquisition of a patent application: both can
allow monopolists to maintain their monopoly power through some basis other
than competition on the merits. In fact, some aspects of patent applications create
anticompetitive concerns that issued patents do not; they give a monopolist more
flexibility to seek to tailor the exclusionary scope of the patent to increase its
monopoly.
Second, the acquisition of a patent application is not protected under NoerrPennington. Amgen’s acquisition was a private commercial transaction, and any
subsequent petitioning of the U.S. Patent and Trademark Office (“USPTO”) or the
district court was a separate step that merely maximized the value of the assets it
acquired. While Noerr-Pennington may protect Amgen’s petitioning activity, that
protection does not attach to prior conduct that maintains monopoly power through
anticompetitive means.

2

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INTEREST OF AMICUS CURIAE
The FTC promotes competition and protects consumer welfare through
enforcement of the federal antitrust laws. See 15 U.S.C. §§ 41 et seq. In that
capacity, it has issued staff reports addressing the appropriate scope and likely
impact of antitrust exemptions such as Noerr-Pennington,1 and has filed amicus
curiae briefs in similar cases.2
The FTC also reviews patent acquisitions and exclusive patent licenses
under the Hart-Scott-Rodino (HSR) Act, which requires companies to provide
advance notice of large mergers and acquisitions. The FTC has issued guidance
and brought cases related to the intersection of patents and the enforcement of
antitrust laws.3

1

See, e.g., FTC Office of Policy Planning, Enforcement Perspectives on the NoerrPennington Doctrine: An FTC Staff Report (2006), https://tinyurl.com/43erfw7p;
FTC Office of Policy Planning, Report of the State Action Task Force (Sept. 2003),
https://tinyurl.com/ysvjmxrt.
2

See, e.g., Intell. Ventures I LLC v. Cap. One Fin. Corp., No. 18-1367 (Fed. Cir.
May 11, 2018), Dkt. 41; Amphastar Pharms., Inc. v. Momenta Pharms., Inc., No.
16-2113, Doc. 00117081683 (1st Cir. Nov. 7, 2016).
3

See, e.g., U.S. DOJ & FTC, Antitrust Guidelines for the Licensing of Intellectual
Property (Jan. 12, 2017), https://www.justice.gov/atr/IPguidelines/dl; FTC v.
Actavis, Inc., 570 U.S. 136 (2013); FTC v. AbbVie, Inc., 976 F.3d 327 (3d Cir.
2020).
3

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BACKGROUND
This case concerns Amgen’s patent rights for its biologic drug Enbrel.
Immunex Corporation (“Immunex”) obtained a series of patents covering Enbrel’s
active ingredient, etanercept. JA0241–0242. In 1998, Immunex launched Enbrel in
the United States to treat inflammatory diseases like rheumatoid arthritis. JA0242.
F. Hoffman-La Roche (“Roche”), however, had already described etanercept
in its own patent applications, which predated Immunex’s applications; as a result,
Roche had a priority right to the technology Immunex used to create the drug.
JA0237–0240, JA0243. Immunex obtained a non-exclusive license to the relevant
patents from Roche. JA0238–0239, JA0243. Roche retained the ability to
commercialize its own version of the drug or license the patents to another
company seeking to develop a competing version. JA0223–0224.
Enbrel proved to be a blockbuster drug. JA0244-0245. In large part due to
Enbrel’s commercial success, Amgen acquired Immunex. JA0246–0247. Amgen
promptly took over marketing Enbrel, with the key patents for the drug set to
expire in 2012. JA0250–0251.
Seeking to extend its exclusivity beyond 2012, Amgen restructured
Immunex’s 1998 license agreement with Roche.4 JA0251. Under the 2004

4

The restructuring deal was submitted to the FTC, which granted early termination
of the HSR waiting period. Early termination merely reflects that “neither [the FTC
(Continued…)
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restructured agreement, Amgen obtained exclusive rights to the etanercept patent
family—including control over the prosecution of two pending Roche patent
applications—as well as the ability to sue companies seeking to market etanercept
biosimilars.5 JA0252–0253.
Those two pending patent applications proved critical to Amgen extending
its monopoly over Enbrel. The USPTO issued the patents in 2011 and 2012, giving
Amgen exclusive rights to patents covering Enbrel through 2029. JA0257–0258.
Amgen then used those issued patents to block its competitors from marketing
Enbrel biosimilars, obtaining permanent injunctions against two firms (Sandoz and
Bioepsis). JA0259, JA0261, JA0211–0214, JA0216–0217. The injunctions
terminate upon the expiration of both patents, on April 24, 2029—seventeen years
after Amgen’s initial Enbrel patents expired in 2012. JA0250, JA0261.
CareFirst filed a class action alleging that the acquisition of these patent
applications constituted anticompetitive conduct that maintained Amgen’s
monopoly in violation of Section 2 of the Sherman Act. JA0279–0282. In moving

nor DOJ] intends to take any action” during the waiting period. 15 U.S.C.
§ 18a(b)(2). It is not a determination of legality, does not constitute an
endorsement of the transaction, and does not preclude later antitrust scrutiny. See
FTC v. Facebook, Inc., 581 F. Supp. 3d 34, 57 (D.D.C. 2022).
5

A patent family is a group of related patents and applications that claim priority
to the same application and generally share the same specification. See Fuel
Automation Station, LLC v. Energera Inc., 119 F.4th 1214, 1228 (10th Cir. 2024).
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to dismiss, Amgen argued that its private transaction obtaining exclusive rights to
Roche’s patent applications was immune from antitrust scrutiny under NoerrPennington because it later obtained injunctions enforcing the issued patents.
JA0451–0455. The district court disagreed, concluding that although the later
litigation was protected by Noerr-Pennington, the overall scheme—beginning with
the acquisition of Roche’s patent rights—remained actionable. JA0039. The
district court further rejected Amgen’s separate contention that the acquisition of
pending patent applications cannot constitute anticompetitive conduct as a matter
of law. JA0030–0035. It then certified both questions for interlocutory appeal
under 28 U.S.C. § 1292(b). JA0522.
ARGUMENT
Amgen seeks a sweeping rule that would prevent antitrust scrutiny of private
commercial agreements acquiring the rights to patent applications.6 First, Amgen
argues categorically that the acquisition of patent applications cannot violate the
antitrust laws. Second, Amgen argues that the acquisition of a patent application is

6

For simplicity, this brief refers to the 2004 exclusive license as an acquisition,
reflecting Amgen’s exclusive control over prosecution of the applications and its
ability to enforce the resulting patents. Amgen does not argue for purposes of this
case that its exclusive licensing agreement should be treated any differently than an
acquisition of a patent application. See also 16 C.F.R. § 801.2(g) (explaining that
an exclusive patent license is substantively the same as a purchase).
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immune from liability under Noerr-Pennington. Neither argument accords with
legal precedent or economic reality.
I.

ACQUISITIONS OF PATENT APPLICATIONS ARE NOT IMMUNE FROM
ANTITRUST SCRUTINY.
A monopolization claim requires allegations that the defendant willfully

acquired or maintained monopoly power “through anticompetitive conduct, as
opposed to gaining its monopoly status ‘as a consequence of a superior product,
business acumen, or historic accident.’” Duke Energy Carolinas, LLC v. NTE
Carolinas II, LLC, 111 F.4th 337, 353 (4th Cir. 2024) (quoting United States v.
Grinnell Corp., 384 U.S. 563, 571 (1966)).7 It is well settled that acquiring patent
rights can constitute anticompetitive conduct. As Amgen itself acknowledges,
“Patent acquisitions are not immune from the antitrust laws.” SCM Corp. v. Xerox
Corp., 645 F.2d 1195, 1205 (2d Cir. 1981); see Amgen Br. 42. Where a monopolist
acquires “exclusive rights in related patents,” that acquisition “should
presumptively be a § 2 ‘exclusionary practice’ … if the effect of the acquisition is
to give the acquirer an exclusive right in them and this serves to increase or
prolong the monopolist’s market power.” Phillip E. Areeda & Herbert Hovenkamp,
7

The term “anticompetitive conduct” in monopolization cases is often used
synonymously with another term of art—“exclusionary conduct”—which the
Supreme Court has defined as behavior that “(1) tends to impair the opportunities
of rivals” and “(2) either does not further competition on the merits or does so in
an unnecessarily restrictive way.” Aspen Skiing Co. v. Aspen Highlands Skiing
Corp., 472 U.S. 585, 605 n.32 (1985) (cleaned up).
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Antitrust Law ¶ 707 (2025). This principle is equally true where the acquisition of a
patent application is concerned, for the reasons discussed below.
A.

Pending Patent Applications, Like Issued Patents, Raise
Competitive Concerns.
1. Acquiring a patent application can constitute anticompetitive conduct.

Whether a monopolist acquires either a patent application or an issued
patent, that transaction can amount to anticompetitive conduct that violates the
antitrust laws.
Nothing about the antitrust laws or the nature of patent applications warrants
different treatment for applications. The Supreme Court indicated as much in
United States v. Singer Mfg. Co., 374 U.S. 174, 189 (1963). Singer engaged in a
series of transactions—including acquiring both issued patents and pending patent
applications—to exclude competition in the sewing machine market. In recounting
Singer’s course of conduct, the Court noted evidence that Singer believed it could
“rewrite the claims” of the pending application “before the patent … issued” to
“make it stronger than it now is.” Id. at 182. The Court found an illegal Section 1
conspiracy, concluding that the Sherman Act “imposes strict limitations on the
concerted activities in which patent owners may lawfully engage.” Id. at 197.
Nowhere in its analysis did the Court distinguish pending applications from issued
patents. See also Hartford-Empire Co. v. United States, 323 U.S. 386, 395 (1945)

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(defendants used “purchases of [patent] applications and patents” in violation of
the Sherman Act).
Nor should it have. To hold otherwise would make a mockery of Section 2.
Indeed, under Amgen’s framing, a monopolist would enjoy total immunity if it
bought its rivals’ assets and squelched competition a single day before patent
issuance. But the very next day, that same conduct—with materially
indistinguishable competitive consequences—would be subject to treble damages
and, potentially, criminal sanctions. 15 U.S.C. §§ 1, 2, 15.
To be sure, a patent application is different from an issued patent. It carries
some uncertainty about the scope of any eventual patent, as well as the risk that no
patent issues. But a patent application can also confer unique strategic advantages
that can, in some circumstances, lead to more anticompetitive harm than acquiring
an issued patent. Control of a patent application allows the holder to leverage:
(1) prosecution control, (2) priority date, (3) continuation practice, and
(4) competitive uncertainty for rivals. These advantages allow a monopolist who
purchases a patent application broad opportunities to increase its monopoly.8

8

Many competitive strengths of patent applications relate to their prosecution. As
explained in Part II, though this subsequent prosecution is itself protected by
Noerr-Pennington, that immunity does not extend to an anticompetitive
acquisition. The petitioning only occurs after the commercial transaction has taken
place, and serves as one means of maximizing the transaction’s value.
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a) Prosecution Control
A patent applicant has the unique ability to manipulate, expand, or pivot its
patent claims over time, long after the application is first filed. In controlling an
application’s prosecution, the applicant can effectively paralyze the competitive
landscape.
When a patent application is filed, it includes a “specification” that can stake
out broad conceptual territory—often far broader than any single invention. The
specification concludes with a set of “claims” that describes the particular scope of
the exclusivity sought. See Tun-Jen Chiang, Fixing Patent Boundaries, 108 Mich.
L. Rev. 523, 527 (2010). The applicant is free to later “amend or insert claims
intended to cover a competitor’s product the applicant’s attorney has learned about
during the prosecution of a patent application.”9 The party controlling prosecution
can tweak the application’s claims, cancel existing claims, or even add entirely
new claims to the application. Mark A. Lemley & Kimberly A. Moore, Ending
Abuse of Patent Continuations, 84 B.U. L. Rev. 63, 64 (2004). That ability to take
affirmative steps to adjust the scope of the patent application’s claims is a strategic
advantage that can allow a monopolist to seek to tailor the patent to exclude
competitors’ later scientific developments and extend its monopoly.
9

FTC, The Evolving IP Marketplace: Aligning Patent Notice and Remedies with
Competition (Mar. 2011) at 87 & n.92 (citation omitted),
https://tinyurl.com/3z75u72y.
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This case illustrates the significance of prosecution control. Immunex
initially took a non-exclusive license to Roche’s IP—even though Roche did not
yet have patents covering Enbrel—because Roche’s original patent application
specification described etanercept, leaving open the possibility that future claims
might cover Enbrel. Amgen Br. 4–5; JA0006–0007. Then Amgen, despite already
having a non-exclusive license that ensured it could sell Enbrel without infringing
Roche’s IP rights, paid Roche to restructure the deal so that it acquired exclusive
control over two pending applications. Amgen used that exclusive control to
change the claims in Roche’s patent applications, ensuring the USPTO would issue
patents tailored to Enbrel. JA0257–0258. Those patents ultimately secured Amgen
years of further market exclusivity.
b) Priority Date
The date a patent application is filed becomes the “priority” date that gives it
precedence over subsequent filings. Prior art (e.g., scientific publications,
competing patents) can only defeat a claim’s patentability if it predates that priority
date. Critically, subsequent applications in the same patent family inherit the
priority date of the initial application. See 35 U.S.C. § 120; see also Donald S.
Chisum, Chisum on Patents § 13.01 (vol. 4A 2026). The priority date of the
original application anchors every patent claim pursued in that application or in
any related continuation application—regardless of how many years later a

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continuation application is filed or how different the eventual claims look from
what was originally sought. Thus, when Amgen acquired control over Roche’s
applications in 2004, it inherited the applications’ earlier priority date. JA0251.
That priority date meant Amgen could pursue patent claims based on Roche’s
specification, shielded from the intervening fifteen years of scientific development
that might otherwise have constituted prior art.
c) Continuation Practice
Control of a pending application also provides the ability to file continuation
applications—new patent applications that claim the benefit of an earlier “parent”
application’s priority date and disclosure, and must be filed while the parent
application remains pending. Lemley & Moore at 66. Because a continuation
application is treated as a new application, prosecution begins again—giving the
applicant another opportunity to shape its claims in response to developments in
the marketplace since the parent was filed.
The FTC has recognized that applicants may keep applications pending,
monitor market developments, and modify their claims to capture additional
subject matter, including competitors’ products. FTC, To Promote Innovation: The
Proper Balance of Competition and Patent Law and Policy, Ch. 4(II)(C)(1) (Oct.
2003). That conduct, in turn, allows an applicant to expand a patent family over
time, adopt new claiming strategies as markets evolve, and potentially build a

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dense set of related patents that deters or delays rivals. See Lemley & Moore at 71–
83 (describing the “pernicious consequences” of continuation applications). By
comparison, an issued patent offers something far less dynamic: a fixed set of
rights based on the claims already allowed.
d) Competitive Uncertainty
The foregoing aspects of patent applications can create anticompetitive
effects through the uncertainty they generate. Because the scope of a pending
application’s claims remains unsettled—and may expand or shift through
continuation filings—competitors cannot reliably design around claims that are
still evolving. This strategic uncertainty can delay or deter investment, product
development, and market entry even before any patent issues. See The Evolving IP
Marketplace at 87–89; Chiang at 525–26, 533–34, 536–37.
Taken together, these competitive advantages reinforce one another.
Prosecution control shapes the application’s claims; priority date anchors those
claims to an earlier moment in time; continuation practice allows new claims to be
pursued indefinitely from that anchoring date; and the resulting uncertainty can
effectively constrain rivals even before any patent issues.
2. Amgen’s attempts to distinguish patent applications from patents fall
short.
First, Amgen contends (Br. 41) that patent applications are not exclusionary
because of their probabilistic nature, emphasizing that a patent application may not
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ultimately issue. But even issued patents carry with them uncertainty. See Actavis,
570 U.S. at 147 (“[T]o 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.”). Indeed, patents themselves “are in a
sense probabilistic, rather than ironclad: they grant their holders a potential but not
certain right to exclude.” In re Cipro Cases I & II (2015) 61 Cal. 4th 116, 143.
Patents are therefore best understood as conferring not the right to exclude “but
rather a right to try to exclude.” Mark A. Lemley and Carl Shapiro, Probabilistic
Patents, 19 J. of Econ. Persps. 75, 76 (2005) (explaining that the “risk that a patent
will be declared invalid is substantial,” as “[r]oughly half of all litigated patents are
found to be invalid”).
This type of uncertainty is also commonplace in antitrust enforcement,
which routinely addresses—and condemns—conduct on the basis of potential or
probabilistic future harms. In United States v. Microsoft Corp., 253 F.3d 34, 79
(D.C. Cir. 2001), the D.C. Circuit explained that uncertain conduct could violate
Section 2 where it appeared “reasonably capable of contributing significantly to a
defendant’s continued monopoly power.” And earlier this year in FTC v. Edwards
Lifesciences Corp., No. 25-2569, 2026 WL 228723 (D.D.C. Jan. 28, 2026), a court
enjoined the merger of two companies that owned pre-commercialization medical
devices. Even though FDA approval of the pending applications for each medical

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device—like USPTO approval of a pending patent application—was “not a
certainty,” id. at *32, the merger of ownership for two pre-approval devices was
“likely to lessen competition substantially,” id. at *29.
The FTC undertakes that same analysis in reviewing a firm’s IP in the
context of a merger. In In re Illumina, Inc., FTC Dkt. No. 9401, the FTC found that
Illumina’s acquisition of GRAIL was anticompetitive in part because Illumina’s
hundreds of issued patents and pending applications discouraged developers from
adopting competing sequencing platforms, and at least one emerging competitor
identified IP risk as a barrier to commercialization.10 Likewise, the FTC’s consent
orders routinely define “patent(s)” to include pending applications because those
applications can support future patent claims capable of undermining divested
assets or recreating the harms the order is designed to prevent.11
Second, Amgen argues that patent applications should be treated differently
from the patents that eventually issue because applications are “nothing more than
requests for exclusionary rights.” Amgen Br. 39. But a patent application is not a

10

See Initial Decision (Sept. 9, 2022), https://tinyurl.com/3wuakewe (Finding of
Fact ¶¶ 9, 599); see also Commission Opinion (Apr. 3, 2023) at 7–9 (citing IDF
¶¶ 664, 666, 697–98), https://tinyurl.com/3z88vn9f.
11

See, e.g., Decision & Order, In re Elanco Animal Health Inc., FTC Dkt. No. C4725 (Sept. 11, 2020) at § NN, https://tinyurl.com/35a7a8ys; Decision & Order, In
re AbbVie Inc., FTC Dkt. No. C-4713 (Sept. 4, 2020) at § NN,
https://tinyurl.com/ykbctzce.
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hollow supplication—it is an inchoate property right, as the Patent Act evinces.
Congress has made clear that an applicant is entitled to a patent unless the USPTO
can prove unpatentability. See 35 U.S.C. §§ 102 (“entitled to a patent unless”), 131
(USPTO “shall issue” a patent if the applicant is entitled), 151 (same); see also In
re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992) (the patent examiner—not the
applicant—bears the initial burden of dislodging applicant’s entitlement to a
patent). A patent application and an issued patent are thus best understood as
points on a single statutory continuum: one at an earlier stage on that continuum,
conferring a legally protected expectation of issuance, and one fully matured.
B.

Recognizing Liability Here Will Not Stifle Innovation.

Amgen warns (Br. 54–56) that innovation will suffer if the Court recognizes
that pending applications can pose anticompetitive concerns. That alarmism is
unfounded.
The FTC recognizes that IP licensing can often be procompetitive. See U.S.
DOJ & FTC, Antitrust Guidelines §§ 2.0, 2.3, 3.1. Most licenses are non-exclusive
and, barring unusual circumstances, are unlikely to present antitrust concerns. Id. at
§ 4.1.2. Exclusive licenses, however, warrant antitrust scrutiny where they threaten
to reduce competition—usually because the parties are competitors or potential
competitors. Id. Subjecting this narrow category of deals to antitrust scrutiny adds

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no new compliance burden, since transactions that meet HSR reporting thresholds
are already reviewed by the FTC and DOJ.
Amgen also mischaracterizes its cited authority by equating an innovator’s
licensing of an application to a non-competitor (which generally promotes
commercialization and competition) with a competitor’s exclusive licensing to a
monopolist (which stifles both). See Amgen Br. 55–56. Aronson v. Quick Point
Pencil, 440 U.S. 257, 261–62 (1979), for example, is inapposite because the
Supreme Court there endorsed an inventor licensing her own application to a noncompetitor to enable commercialization of her invention (a procompetitive
outcome). See Amgen Br. 55. Amgen’s reliance on the Hovenkamp Buying
Monopoly article undermines its own argument. Id. That article explains that while
most patent assignments are procompetitive because they facilitate
commercialization, acquisitions by a dominant firm of “substitute patents from
external patentees” can “impede product market rivals by limiting their access to
important technological inputs.” Erik Hovenkamp & Herbert Hovenkamp, Buying
Monopoly: Antitrust Limits on Damages for Externally Acquired Patents, 25 Tex.
Intell. Prop. L.J. 39, 39 (2017). The authors stress that the Patent Act never
justifies “the acquisition of individual patent rights into portfolios that dominate a
market, something that … the antitrust laws rightfully prohibit.” Id. They therefore
propose that where a dominant firm acquires patents in its own technology market,

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“its acquisition be limited to a nonexclusive license,” because limiting dominant
firms to nonexclusive rights “will tend to increase innovation by discouraging
systematic monopoly in technology markets.” Id. at 40 (emphasis added). In short,
that article warns against precisely what occurred here: exclusive acquisitions by
monopolists.
II.

AMGEN’S ACQUISITION IS NOT PROTECTED UNDER NOERR-PENNINGTON.
The district court properly concluded that Amgen’s acquisition of patent

applications is not protected from the antitrust laws merely because Amgen later
prosecuted those applications and enforced the issued patents through litigation.
Under Noerr-Pennington, “defendants are immune from antitrust liability for
engaging in conduct (including litigation) aimed at influencing decisionmaking by
the government.” Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S.
545, 556 (2014) (citing E. R.R. Presidents Conf. v. Noerr Motor Freight, Inc., 365
U.S. 127 (1961); United Mine Workers v. Pennington, 381 U.S. 657 (1965)).
Noerr-Pennington “safeguards the First Amendment right to ‘petition the
government for a redress of grievances,’ by immunizing citizens from the liability
that may attend the exercise of that right.” Waugh Chapel S., LLC v. United Food
& Com. Workers Union Loc. 27, 728 F.3d 354, 362 (4th Cir. 2013) (internal
citation omitted). Thus, legitimate petitioning activity, even when “intended to

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eliminate competition,” “is not illegal, either standing alone or as part of a broader
scheme itself violative of the [antitrust laws].” Pennington, 381 U.S. at 670.
Noerr-Pennington immunity is not boundless, however. The doctrine
extends only to petitioning activity and restraints that are “‘incidental’ to a valid
effort to influence governmental action.” Allied Tube & Conduit Corp. v. Indian
Head, Inc., 486 U.S. 492, 499 (1988) (quoting Noerr, 365 U.S. at 143). The
Supreme Court has repeatedly cautioned against an “absolutist” approach,
underscoring that Noerr-Pennington “does not extend to ‘every concerted effort
that is genuinely intended to influence governmental action.’” FTC v. Superior Ct.
Trial Laws. Ass’n, 493 U.S. 411, 425 (1990) (quoting Allied Tube, 486 U.S. at
503). Amgen’s arguments represent precisely the kind of Noerr-Pennington
absolutism the Supreme Court has rejected.
A.

Noerr-Pennington Protects the Enforcement of Patents Through
Litigation, But Not the Underlying Acquisition of Patents or
Patent Applications.
1. Noerr-Pennington does not protect commercial transactions distinct
from petitioning.

This Court should make clear that Noerr-Pennington does not preclude
antitrust liability for acquiring patent rights where a monopolist later sues to
enforce those rights in court. A wealth of case law supports this proposition. To
start, the Supreme Court suggested as much in Pennington itself. 381 U.S. at 670.
The Court stated that petitioning activity was not illegal, “either standing alone or
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as part of a broader scheme itself violative of the Sherman Act.” Id. (emphasis
added). Thus, Noerr-Pennington protects petitioning, but non-petitioning aspects
of the same anticompetitive scheme may remain “violative of the Sherman Act.”
See also Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d
1240, 1265 (9th Cir. 1982) (explaining Pennington provides immunity only for
“the narrow petitioning activity”).
The Second Circuit addressed this issue directly in PrimeTime 24 Joint
Venture v. National Broadcasting. Co., 219 F.3d 92 (2d Cir. 2000). There, a
satellite operator alleged that network broadcasters engaged in a concerted refusal
to negotiate copyright licenses in violation of the Sherman Act. Id. at 97. The
broadcasters argued that this alleged agreement was protected from antitrust
scrutiny because they subsequently filed copyright-infringement lawsuits. Id. at
102. The Second Circuit rejected that argument, explaining that “copyright holders
may not agree to limit their individual freedom of action in licensing future rights
to such an infringer before, during, or after the lawsuit.” Id. at 103. “Such an
agreement would, absent litigation, violate the Sherman Act, and cannot be
immunized by the existence of a common lawsuit.” Id. (internal citation omitted).
Likewise, in Amphastar Pharmaceuticals, Inc. v. Momenta
Pharmaceuticals, Inc., 850 F.3d 52, 57 (1st Cir. 2017), the First Circuit held that
“[t]he mere existence of a lawsuit does not retroactively immunize prior anti-

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competitive conduct.” The plaintiff there alleged that defendants did not disclose to
a standard-setting organization that a pending patent application covered their
proposed method for testing a generic drug. Id. at 54. The defendants subsequently
obtained a preliminary injunction against the plaintiff for patent infringement. Id.
The First Circuit reversed the district court’s dismissal of the plaintiff’s Sherman
Act claims, which had reasoned that the defendants’ conduct was immunized under
Noerr-Pennington. Id. at 56. That “the alleged damages are based, in part, on a
lawsuit seeking an injunction does not ‘defeat the antitrust claim based on conduct
before the standard-setting organization.’” Id. at 57 (citation omitted). Amgen tries
to carve out “an exception” for Amphastar by noting the alleged underlying
antitrust violation was rooted in fraud. See Amgen Br. 26 n.11. But that fact had no
bearing on the court’s analysis and offers no basis to distinguish Amphastar.
Other circuits have held similarly. See A.D. Bedell Wholesale Co. v. Philip
Morris Inc., 263 F.3d 239, 251 (3d Cir. 2001) (“Private parties cannot immunize
an anticompetitive agreement merely by subsequently requesting legislative
approval.”); Columbia Steel Casting Co., Inc. v. Portland Gen. Elec. Co., 111 F.3d
1427, 1446 (9th Cir. 1996) (finding Noerr-Pennington inapplicable where utility
companies obtained order from state agency adopting anticompetitive contract, as
the defendant “is not being held liable for filing the application” but instead “is
being held liable for agreeing … to replace competition with area monopolies”);

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Premier Elec. Const. Co. v. Nat’l Elec. Contractors Ass’n, Inc., 814 F.2d 358, 376
(7th Cir. 1987) (holding Noerr-Pennington did not immunize underlying pricefixing contract that defendants sought to enforce in court).
These cases confirm that, while the act of bringing an infringement lawsuit
is itself protected by Noerr-Pennington, the lawsuit does not shield prior
anticompetitive conduct from antitrust liability. Stretching the boundaries of
Noerr-Pennington to immunize the entire course of conduct would run counter to
the Court’s directive that antitrust exemptions be narrowly construed. See Grp. Life
& Health Ins. Co., 440 U.S. at 231.
Thus, if Amgen maintained its monopoly through an unlawful acquisition of
patent rights (including the rights to pending patent applications), it violated the
antitrust laws—regardless of whether it later filed infringement claims to enforce
its patent rights. See JA0130 (alleging the acquisition violated the antitrust laws).12
Indeed, Amgen would have committed the same alleged violation even if it had
acquired the rights and “left them in a drawer” (Amgen Br. 50); the unlawfulness
of Amgen’s acquisition does not hinge on the subsequent infringement litigation.
Cf. McGuire Oil Co. v. Mapco, Inc., 958 F.2d 1552, 1561 (11th Cir. 1992) (Noerr-

12

Because CareFirst has challenged the alleged antitrust violation, not the validity
of the patents litigated in the Federal Circuit, Amgen’s concerns that CareFirst’s
claims amount to a “collateral attack” (Br. 27–28) are unfounded.
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Pennington immunity applied where defendants did not “allege any facts
independent of plaintiffs’ pre-litigative [threat of litigation] and litigative activities
to establish that a conspiracy in violation of the Sherman Act took place”).
For that reason, Amgen’s primary authority, Mayor of Baltimore v. AbbVie
Inc., 42 F.4th 709, 711 (7th Cir. 2022), is not “highly analogous to this case.”
Amgen Br. 48–49. The Seventh Circuit did not address acquisitions at all. The
defendant there “obtained” patents through its “successful petition[ing]”—
prosecuting its patent applications before the USPTO—and later “invok[ed]” the
issued patents in litigation. Mayor, 42 F.4th at 711–13. The court observed that the
claim in that case was based on a “concern about the successful outcome of [a
defendant’s] petitioning” the USPTO; the dicta about “costs on rivals” “imposed
by the process of petitioning” is thus irrelevant to this case. Id. at 714. The Seventh
Circuit recognized that Noerr-Pennington protected the act of filing and
prosecuting patent applications; it said nothing about an underlying commercial
transaction to acquire exclusive rights to patent applications.
2. Breaking with the above precedent would cause serious and farreaching practical problems.
To extend Noerr-Pennington here would suppress competition without
serving any of the doctrine’s purposes. And the risks of that extension are both
clear and far-reaching.

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Under Amgen’s view, any anticompetitive scheme could be insulated from
antitrust enforcement so long as the monopolist later engaged in some form of
petitioning. The acquisition of an issued patent—which Amgen concedes is
generally subject to antitrust review (Br. 42)—would be shielded if it was later
enforced via petitioning the courts. Such an outcome is contrary to established
precedent. See Handgards, Inc. v. Ethicon, Inc., 601 F.2d 986, 994 (9th Cir. 1979).
Similarly, if a participant in a price-fixing conspiracy sues a defector for breach of
contract, the underlying conspiracy remains illegal. See Allied Tube, 486 U.S. at
503 (not all conduct aimed to influence government action is protected, as
otherwise “competitors would be free to enter into horizontal price agreements as
long as they wished to propose that price as an appropriate level for governmental
ratemaking or price supports”).
Indeed, Amgen’s approach would create an arbitrary regime in which the
antitrust legality of an agreement depended on whether it later led to a lawsuit. A
patent or patent application acquisition would be protected if the acquirer sued
someone for infringement, but unprotected if competitors opted to avoid the
market entirely. A price-fixing agreement would be protected if the participants
petitioned the government to endorse the price, but not otherwise. Worse, NoerrPennington protection would change over time: an acquisition of patents or patent
applications that violated the antitrust laws would be illegal until the acquirer

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brought an enforcement suit, at which point it would retroactively be protected.
The scope of antitrust liability should not be so easily manipulated.
3. Amgen confuses antitrust violations with injury.
Amgen’s argument also muddles an important distinction between two
disparate legal concepts: antitrust violations and private plaintiff antitrust injury.
Amgen’s brief nominally frames its Noerr-Pennington causation arguments in
terms of private plaintiff antitrust injury, rather than substantive antitrust liability.
But in substance, Amgen contends Noerr-Pennington immunizes them from
liability. See Amgen Br. 29–30 (arguing “causation of injury from anticompetitive
conduct is an element of antitrust liability”). That is wrong.
As the Supreme Court has explained, “[P]roof of a[n antitrust] violation and
of antitrust injury are distinct matters that must be shown independently.” Atl.
Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 344 (1990) (citation omitted).
All antitrust plaintiffs, private and public, must establish that the antitrust laws
have been violated because the challenged conduct can have an anticompetitive
effect. Actavis, 570 U.S. at 159. But only a private plaintiff must make an
additional showing that it suffered an antitrust injury (actual or threatened) caused

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by the anticompetitive conduct. See California v. Am. Stores Co., 495 U.S. 271,
295–96 (1990).13
Amgen’s subsequent petitioning does not protect its broader course of
allegedly anticompetitive conduct under Noerr-Pennington. That is so regardless
of whether CareFirst can make a showing of private injury.
B.

The Noerr-Pennington Doctrine Does Not Categorically
Immunize the Acquisition of Rights to a Patent Application.

Amgen separately contends that the acquisition of exclusive rights to patent
applications is categorically protected under Noerr-Pennington because it is
conduct “incidental to petitioning.” Amgen Br. 44. Amgen reasons that because its
deal with Roche was “preliminary” to its subsequent petition to the USPTO,
seeking issuance of the patents, there is “simply no way to disentangle” the two. Id.
at 45–46. This proposed categorical protection is as brazen as it is wrong.
The acquisition of a patent application is a far cry from what courts
traditionally understand as “incidental.” Courts have extended Noerr-Pennington
protection beyond the specific petitioning activity only when necessary to provide
“adequate ‘breathing space’ to the right of petition.” Navient Sols., LLC v. Lohman,
136 F.4th 518, 525 (4th Cir. 2025) (quoting Sosa v. DIRECTV, Inc., 437 F.3d 923,
932 (9th Cir. 2006)). As Amgen acknowledges (Br. 46), that has traditionally been

13

The FTC takes no position on the requirements for private plaintiff injury.

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necessary only for a narrow category of pre-litigation conduct that has no
independent commercial significance apart from the petition it supports—e.g., the
threat of litigation, offer of settlement, or third-party litigation funding. See Sosa,
437 F.3d at 937; Coastal States Mktg., Inc. v. Hunt, 694 F.2d 1358, 1367–68 (5th
Cir. 1983); Baltimore Scrap Corp. v. David J. Joseph Co., 237 F.3d 394, 401 (4th
Cir. 2001).14
Those limited instances warranted protection under Noerr-Pennington
because the conduct was in service of, and derived its significance from, the
forthcoming petition. The unifying principle is that the conduct exists solely to
initiate, settle, or facilitate a petition—in other words, the conduct is subordinate to
the petitioning.
Amgen’s argument flips that concept on its head. Here, Amgen engaged in a
standalone commercial transaction to acquire an asset that extended its market
power. Petitioning the USPTO was a distinct subsequent step that helped maximize
the financial value of its acquisition. If anything, Amgen’s petitioning is
incidental—and subordinate—to the commercial transaction. It would blink reality

14

This Court has not yet addressed the scope of “incidental.” See Navient Sols.,
136 F.4th at 525 (leaving “analyzing the exact bounds of Noerr-Pennington
immunity for another day”).
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to suggest that Amgen’s true aspiration was to petition the USPTO, with its
acquisition of the assets a mere expedient towards this ultimate goal.
And critically, even if Amgen never petitioned the USPTO, its acquisition
would retain value separate from any petitioning opportunity. An application’s
owner could sell its rights, license them, or use its ownership strategically to
influence market-entry decisions. See supra Part I.A. By contrast, third-party
litigation funding derives its value strictly from the petitioning activity it supports.
That is why this Court in Baltimore Scrap analogized it to the aid a non-party
provides when filing an amicus brief: both are derivative of and inseparable from
protected petitioning by another party. 237 F.3d at 401. Amgen’s acquisition of
patent applications, by contrast, is distinct from the prosecution of those
applications; it is neither coextensive with nor derivative of petitioning.
Amgen is thus wrong to argue that categorical Noerr-Pennington immunity
for acquisitions of patent applications is necessary to avoid chilling USPTO
petitioning. Amgen Br. 45. Rather, applying the antitrust laws to such transactions
will chill private commercial transactions that increase market power—precisely
the types of agreements the antitrust laws were enacted to prevent.
By way of analogy, consider a hotelier who maintains his monopoly by
purchasing a property to build another hotel. That property has squatters, and the
seller has already initiated eviction proceedings. After purchasing the property, the

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hotelier takes over the squatter eviction proceedings—an act of petitioning. It
would be nonsensical to suggest that the hotelier’s property purchase was merely
“incidental” to removing the squatters. The petitioning is simply a separate step
necessary to maximize the value of the acquired property right. Enforcing the
antitrust laws would not deter the hotelier from evicting squatters; it would only
deter the hotelier from seeking to maintain his monopoly through unlawful land
purchases. The same is true here.
Finally, while Amgen argues that its proposed carveout would be limited to
the acquisition of patent applications, its logic necessarily sweeps far beyond this
case, effectively pulling any standalone commercial transaction under NoerrPennington’s penumbra where petitioning is a foreseeable subsequent step. For
example, the acquisition of a medical device in the FDA approval process would
be incidental to the “petitioning” of seeking approval. Contra Edwards
Lifesciences, 2026 WL 228723 at *46 (acquisition of medical device undergoing
FDA approval process enjoined). Treating these private commercial transactions as
“incidental” would thus impermissibly expand Noerr-Pennington far beyond its
“breathing space,” Navient Sols., 136 F.4th at 525 (cleaned up), rendering the
antitrust laws ineffectual.

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CONCLUSION
The Court should hold (1) that the acquisition of a patent application can
constitute exclusionary conduct under the antitrust laws; and (2) that the presence
of petitioning activity in an overall course of anticompetitive conduct does not
shield the non-petitioning activity from the antitrust laws.

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Respectfully submitted,
LUCAS CROSLOW
General Counsel
H. THOMAS BYRON III
Deputy General Counsel
/s/ Robert A. Silverstein
ROBERT A. SILVERSTEIN
Attorney

Of Counsel:
DANIEL W. BUTRYMOWICZ
ANUPAMA SAWKAR
Attorneys

FEDERAL TRADE COMMISSION
600 Pennsylvania Ave. NW
Washington, D.C. 20580
(202) 325-2488
rsilverstein@ftc.gov

FEDERAL TRADE COMMISSION
Washington, D.C. 20580

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CERTIFICATE OF SERVICE
I hereby certify that on August 14, 2026, I caused the foregoing to be
electronically filed with the Clerk of the Court for the United States Court of
Appeals for the Fourth Circuit by using the appellate CM/ECF system. The
participants in the case are registered CM/ECF users and service will be
accomplished by the appellate CM/ECF system.

Dated: August 14, 2026

/s/ Robert A. Silverstein

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CERTIFICATE OF COMPLIANCE
This brief complies with the length limits of Federal Rule of Appellate
Procedure 29(a)(5). The brief is 6,469 words, excluding the portions exempted by
Rule 32(f). The brief’s typeface and type style comply with Rule 32(a)(5) and (6).

Dated: August 14, 2026

/s/ Robert A. Silverstein

33

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Aftc%3A9c5627868d82d136. Public record. Not legal advice.