Mylan Pharma. v. Warner Chilcott — antitrust — affirmance — Fuentes
“Product hopping” is a strategy name-brand drug makers use to suppress competition from makers of generic drugs. By changing their drugs in minor ways, they force generic makers to restart the federal approval process to show that their generic drug is the same. The practice has led to antitrust litigation, including today’s case involving an acne drug sold under the unfortunate brand name Doryx.
Today, the Third Circuit affirmed a district court ruling in favor of the antitrust defendant, holding that the plaintiffs failed to show that the defendants had monopoly power and failed to show that their product-hopping was in fact anti-competitive.
Joining Fuentes’s lucid opinion were Shwartz and Barry. Arguing counsel, amidst a phalanx of amici, were Jonathan Jacobson of Wilson Sonsini for the generic drug-maker and John Gidley of White & Case for the antitrust defendants.
Although no Third Circuit opinions have been issued today, the Federal Circuit did issue an opinion which discussed an unanswered question of Third Circuit law. It discussed whether an analysis pursuant to Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir. 1984) needs to be undertaken when the underlying discovery order is deemed an abuse of discretion. The Federal Circuit determined that undertaking a Poulis analysis was the prudent approach because the Third Circuit hasn’t spoken on the issue yet.
Thanks, John, nice catch. A link to the Federal Circuit opinion, Drone Technologies, is here.