Amgen, Teva to face Sensipar monopoly claims
Amgen and Teva will have to face a lawsuit accusing them of restricting competition by engineering a reverse payment designed to keep generic versions of Sensipar (cinacalcet) off the market.
Amgen’s Sensipar is a drug used to treat conditions affecting the parathyroid. The company sued generics maker Teva for patent infringement over its plans to launch its own, cheaper cinacalcet product in the US.
While Amgen appealed a district court judgment holding that Teva had not infringed the patents, Teva launched the product and sold $393 million of the product in one week.
The parties subsequently agreed a settlement, whereby Teva paid Amgen $40 million in damages and agreed not to market its generic product until June 2021.
A group of trade union welfare funds are now suing the drug companies, arguing that the settlement amounted to an anti-competitive pay-for-delay deal.
Teva and Amgen filed to have the suit dismissed, claiming the deal does not qualify as a pay-for-delay deal, or reverse payment because in this case the alleged infringer paid the patent owner.
But in a judgment issued earlier this week, a judge at the US District Court for the District of Delaware said the plaintiffs’ antitrust claims could proceed.
The plaintiffs claim that Teva’s retained revenues far outweighed the damages it paid to Amgen for the infringement and that the settlement clearly amounted to an illegal “transfer of value” designed to protect Amgen’s monopoly power.
Judge Richard Leonard said Teva and Amgen had an antitrust case to answer, rejecting another Delaware judge’s earlier recommendation that the case be dismissed.
The US Court of Appeals for the Third Circuit has held that a “token payment by the purportedly infringing generic manufacturer” does not “shield patent settlements from antitrust review,” Leonard noted in his order.
Teva argued that it earned its revenue from cinacalcet by competing against Amgen, rather than by conspiring with its rival.
But Leonard responded: “One might view this as Teva earning money from briefly competing in the marketplace. Alternatively, one might view it as Teva taking a small, temporary slice of Amgen’s monopoly profits for only so long as benefited Amgen and Teva, who ceased their ostensible ‘competition’ before their actions would harm both of them by opening the floodgates to additional generic competition.”
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