Interesting note: this is only the 3rd time the FTC is representing itself before the SCOTUS. See n.1.
(data provided from NewsGator Online)
Although Schering-Plough is headquartered in New Jersey and Upsher in Minnesota, they filed their case with the conservative appeals court in Atlanta -- a blatant example of forum shopping for which plaintiffs' lawyers are often criticized. As it happened, they were lucky enough to draw an all-Republican panel of judges headed by Peter T. Fay, a Nixon appointee and one of the three judges who authorized Ken Starr to continue his witch hunt against Bill Clinton even after the Senate impeachment trial.
Fay's idea of striking a "delicate balance" between patent and antitrust law was to decree that drug companies are free to engage in any anticompetitive behavior they like until their patents expire.
In a final, tortured bit of legal logic, Fay even argued that non-compete arrangements actually increase competition by creating an environment of "legal certainty" that encourages investment -- a loony proposition for which he offered no evidence, and which was explicitly contradicted by an FTC staff study.
Law 6205 Fall 2005: This course will be a blend of graded drafting exercises and case law study. The exercises will necessitate a waiver of anonymity by students for grading in this course. Students who are registered patent agents as of the last day of classes will be graded on a separate curve, similar to the situation with LLM students
Whether, in an action under Section 1 of the Sherman Act, 15 U.S.C. § 1, alleging that the defendant engaged in unlawful tying by conditioning a patent license on the licensee's purchase of a non-patented good, the plaintiff must prove as part of its affirmative case that the defendant possessed market power in the relevant market for the tying product, or market power instead is presumed based solely on the existence of the patent on the tying product.
The ABA also filed an amicus brief in support of petitioners May 2005 version available here.
[UPDATE] Some more useful links: