CIMA Labs Inc. (“CIMA”) owns a patent related to the structure of a tablet that masks the taste of a pharmaceutical, and Shionogi Pharma, Inc. (“Shionogi”) is the exclusive licensee of the patent in the United States. Shionogi and CIMA filed a patent infringement suit against Mylan, and Mylan asserted counterclaims against Shionogi and CIMA (collectively, “the Counterclaim-Defendants”) under the Sherman Act for combination and conspiracy in restraint of trade, and monopolization and attempted monopolization. The Counterclaim-Defendants moved to dismiss the antitrust counterclaims, and Visiting Judge Baylson granted this motion, finding that Mylan had not pleaded the antitrust counterclaims with the necessary specificity.
Looking at Mylan’s first antitrust counterclaim, the court noted that to plead a Section 1 claim under the Sherman Act (which prohibits unreasonable restraints on trade), the complaint must allege: (1) a concerted action by the defendants; (2) anti-competitive effects produced by such action within the relevant product and geographic markets; (3) that the concerted actions were illegal; and (4) that the plaintiff was injured as a proximate result of the concerted action. 2011 WL 2174499, at *4. The court found that Mylan did not satisfy the first element because it did not allege facts that plausibly suggested “a unity of purpose or a common design and understanding,” id., and instead only offered facts that suggested “merely parallel conduct that could just as well be independent action.” Id. Moreover, the court held that Mylan’s Section 1 counterclaim failed because parties with unified interests, such as a patent holder and an exclusive licensee, are incapable of conspiring within the meaning of the Sherman Act. As such, Shionogi and CIMA are incapable of conspiring as a matter of law. Id. at *5. The court likewise rejected Mylan’s second antitrust counterclaim, holding that Mylan failed to plead that the Counterclaim- Defendants had the requisite “monopoly power.” The court stated that to plead a monopolization antitrust claim one must specifically allege proof of monopoly power in the relevant market, and cannot rely on the “mere presumption” of such power based on ownership of a patent. Id. at *6.