Following a public comment period, the Federal Trade Commission has approved a final order settling charges that Invibio, a company that supplies some of the world’s largest medical device makers with a high-performance polymer used to make spinal and other medical implants, used long-term exclusive contracts to illegally maintain its monopoly.
In a formal statement issued with the approval of the final order, the Commission noted that the case “reflects our commitment to intervene when a dominant firm employs exclusionary practices to maintain its monopoly power and harm competition.” The Commission also stated that the order is designed to “facilitate price competition, spur innovation, and provide medical device makers with a meaningful choice among PEEK suppliers.”
According to the administrative complaint, Invibio relied on the exclusive contracts to prevent its customers from using more than one source of supply for the polymer, implant-grade polyetheretherketone – known as PEEK – despite the customers’ business preference to do so. Invibio was also able to maintain high prices notwithstanding the availability of PEEK at significantly lower prices from two newer PEEK suppliers, and prevent the two newer suppliers from developing into fully effective competitors.
Under the final order, Invibio, Inc., Invibio Limited, and their corporate parent, Victrex plc, are generally prohibited from entering into exclusive supply contracts and from preventing current customers from using an alternate source of PEEK. The order also generally bars the companies from using other contract provisions –such as market share or retroactive volume discounts – that could effectively result in an exclusive arrangement between Invibio and a device maker.
The Commission vote approving the final order and a Commission Statement was 3-0.
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