Petitioning Is Not the Same as Buying

In CareFirst v. Amgen, the Noerr-Pennington question is whether protection for Amgen’s later petitions to the U.S. Patent and Trademark Office and the courts also protects the earlier commercial transaction that gave Amgen exclusive control over Roche’s pending applications. The Federal Trade Commission says those are different acts with different functions. Understanding that separation helps the reader identify which conduct may be constitutionally protected and which conduct can still be examined as part of an acquisition-based antitrust theory.

What Noerr-Pennington protects—and where it stops

Noerr-Pennington is a doctrine grounded in the First Amendment right to petition the government. It protects legitimate efforts to influence government decision-making, including asking the USPTO to issue patent claims and asking a court to enforce an issued patent. The protection can apply even when the petitioner hopes the government action will eliminate competition. A competitor may ask a court for an injunction, or an applicant may ask the patent office for exclusionary rights, without turning the act of petitioning itself into an antitrust violation merely because the result would disadvantage rivals.

That principle matters in this case because Amgen did not simply buy an existing patent and stop. According to the FTC’s account, it later prosecuted the two acquired applications before the USPTO. Once patents issued in 2011 and 2012, Amgen used them in federal-court litigation against companies seeking to market Enbrel biosimilars. Amgen argues that the acquisition should be protected because these later steps were part of obtaining and enforcing the rights. The FTC does not dispute that petitioning may receive protection. It disputes the attempt to extend that protection to the transaction that came first.

The doctrine is not boundless. The FTC relies on Supreme Court decisions describing Noerr-Pennington as protection for petitioning and restraints that are incidental to a valid effort to influence government action, not every concerted effort that is intended to influence the government. “Incidental” does important work here. It does not mean that every private act that occurs before a petition is immune. It refers, in the FTC’s account, to conduct whose significance comes from the petition it supports and that has no independent commercial importance apart from that petition.

A threat of litigation, an offer to settle litigation, or financial support that exists only to facilitate another party’s petition can be understood as subordinate to the petition. If the petition never occurs, that conduct may have little or no separate value. The FTC contrasts those examples with a transaction that acquires an asset. A patent application can be sold, licensed, or used strategically to influence a potential entrant even if the buyer never asks the USPTO to issue a patent or never files an infringement case. Its value is not exhausted by the government proceeding.

That distinction avoids a common mistake: treating the purpose of a transaction as enough to determine its legal status.