FTC backs antitrust challenge to Amgen’s Enbrel patent deal

By Atlas Watchline Staff · Legal · August 21, 2026

The Federal Trade Commission filed an amicus brief in a Fourth Circuit appeal, saying commercial deals that acquire rights to patent applications can face antitrust scrutiny.

The Federal Trade Commission said Tuesday that it filed an amicus brief in a Fourth Circuit antitrust appeal over Amgen’s acquisition of rights to patent applications tied to Enbrel, a biologic drug used to treat rheumatoid arthritis and other inflammatory conditions.

The commission said the case involves how antitrust law applies when a company buys control over pending patent applications that may affect competition in prescription drug markets.

According to the FTC’s brief and the underlying complaint described in its release, CareFirst of Maryland Inc. and affiliates sued Amgen, alleging the company acquired exclusive rights to pending patent applications, used them to obtain patent claims covering Enbrel, and then leveraged those patents to extend its monopoly and block lower-cost competitors.

The FTC said the U.S. District Court for the Eastern District of Virginia denied Amgen’s motion to dismiss, and Amgen then appealed to the U.S. Court of Appeals for the Fourth Circuit.

Amgen argued that acquiring patent applications can never be anticompetitive under Section 2 of the Sherman Act, according to the FTC’s summary of the case. The company also argued that Noerr-Pennington immunity applied because it later prosecuted the applications before the U.S. Patent and Trademark Office and enforced the issued patents in court.

The FTC’s brief argues that private commercial agreements acquiring rights to patent applications are subject to antitrust scrutiny. The commission said control of a pending application can create anticompetitive harms before a patent is granted and can help a company exclude competitors.

The agency also argued that Noerr-Pennington protects petitioning activity, but not the underlying commercial transaction that transfers control of the patent applications.

The FTC said it filed the brief because it has an interest in the proper application of federal antitrust laws and in making prescription drugs more affordable by promoting competition. The commission vote authorizing the filing was 2-0, according to the release.

What happens next will depend on the Fourth Circuit’s review of the appeal. The FTC said the brief was filed in that court, but did not say when the judges will rule.

Sources

• FTC press release: FTC files amicus brief to protect competition in biologic drug markets

Editorial note: This article was prepared with AI assistance and includes source attribution for reader review.

This is the AMP version of the article. Read the full article on Atlas Watchline.