The Progressive


A project of Common Dreams

For Immediate Release

Roberto Hylton,

Open Markets Institute Files Amicus Brief in Regeneron v. Novartis

Case concerns critical issue in antitrust—how to define the product market in which businesses compete


The Open Markets Institute filed an amicus brief in Regeneron v. Novartis. This case concerns alleged monopolization and restraint of trade by Novartis in the market for a medication used to treat macular degeneration and other serious eye conditions. It raises a critical issue in many antitrust matters--how to define the product market in which businesses compete. Basic antitrust concepts such as monopoly power are meaningful only in relation to a particular product and geographic market.

The Open Markets Institute's brief lays out how the district court failed to apply the relevant legal precedent and to consider facts before it. The court inappropriately adopted a formalistic rule on what constitutes a proper product market and held that a patented good can almost never be its own product market. It further disregarded the ample evidence in Regeneron's complaint, which showed that its proposed product market was more than plausible. By ignoring the law and the factual allegations, the court dismissed Regeneron's antitrust complaint against Novartis. Instead, the court should have permitted the parties to develop the factual record and identified the product and geographic boundaries of the relevant market based on this evidence.

"If courts fail to properly define what constitutes a product market, monopolists are much more likely to escape accountability for their unfair competitive practices," said Sandeep Vaheesan, Legal Director at Open Markets Institute. "In this case, the district court ignored both the law and the factual allegations in Regeneron's complaint."

The Open Markets Institute works to address threats to our democracy, individual liberties, and our national security from today's unprecedented levels of corporate concentration and monopoly power. By combining policy, legal, and market structure expertise with sophisticated communications and outreach efforts, Open Markets seeks not only to hold today's monopolies accountable for abuse of power, but to rebuild an economic system where progress is easier to achieve, because power is far more widely and equitably distributed