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Politico Interviews Professor Shubha Ghosh About Botox Trade Battle

Posted on Thursday 11/19/2020
Shubha Ghosh

ITC to decide Botox trade secret battle

(Politico | Nov. 18, 2020) If Abbvie’s Allergan gets its way, the biggest threat to its blockbuster wrinkle remover Botox — Evolus’s Jeuveau — will be banned from the U.S. for the next 10 years.

Allergan and its Korean partner Medytox have asked the U.S. International Trade Commission to ban Jeuveau — manufactured by Korea’s Daewoong Pharmaceuticals and sold in the U.S. by Evolus — because of trade secret theft. According to their complaint, Daewoong obtained the bacteria Medytox uses to develop Botox from a former Medytox employee, a claim both Daewoong and the former employee deny. But an ITC administrative law judge ruled in favor of Allergan and Medytox in July, recommending a 10-year ban on Jeuveau ...

... The ITC’s process has two advantages over litigating in federal court: its proceedings operate on a tight schedule, the average case takes only 18 months, and there is only one possible remedy — infringing goods are blocked from entering the U.S.

“These exclusion orders are pretty strong,” said Shubha Ghosh, a professor of antitrust and intellectual property at the Syracuse University College of Law. “They are essentially confiscating the goods at the border.”

If the ITC issues an exclusion order, companies have one potential escape hatch: the president can overrule the trade agency’s decision. Since 2005, the president has delegated authority for ITC decisions to the U.S. Trade Representative ...

... Syracuse’s Ghosh, who also submitted a statement to the ITC, said the decision invites “monopolists to buy their way into ITC cases in order to prevent their foreign competitors from competing with them.”

“The idea behind the exclusion order is to keep infringing goods out, not just keep goods out,” said Ghosh, whose program focuses on helping entrepreneurs, start-ups and universities commercialize their innovations. “The ITC needs to look at what the consumer harm” of its decision could be ...

Read the full article.