FTC’s $448m AbbVie win overturned
A US appeals court has cancelled a $448 million antitrust bill for AbbVie, in a blow for the US Federal Trade Commission (FTC).
A June 2018 ruling from the US District Court for the Eastern District of Pennsylvania found that AbbVie and Besins Healthcare broke competition law to maintain their monopoly over the testosterone replacement drug AndroGel.
The FTC had argued that AbbVie and Besins filed baseless patent infringement claims against generic manufacturers including Teva, in order to delay approval from the US Food and Drug Administration (FDA).
While these were pending, AbbVie entered into a pay-for-delay settlement with Teva to keep generic competition off the market, the competition regulator claimed.
But in a ruling issued yesterday, September 30, the US Court of Appeals for the Third Circuit reversed the decision and ordered a new trial.
The Third Circuit found that the Pennsylvania court was wrong to find that AbbVie’s lawsuit against was a “sham”.
And while AbbVie did have monopoly power over AndroGel, the FTC did not demonstrate that this entitled it to any remedy, the Third Circuit ruled.
The decision was not a complete victory for AbbVie, which will have to face revived claims over a legal settlement with Teva.
The FTC referred to the deal as an illegal “reverse payment”, which sees a patent owner pay an alleged infringer to prevent or end a lawsuit.
This part of the FTC’s argument had been rejected by the Pennsylvania court, which the Third Circuit said was a mistake.
“Reverse payments can be anticompetitive because they allow a brand-name company to split its monopoly profits with a generic company willing to delay market entry,” the Third Circuit decision said.
The FTC announced last week that it is seeking an en banc rehearing of Qualcomm’s victory at the US Court of Appeals for the Eleventh Circuit.
The decision came as a major defeat for the FTC, which has pursued Qualcomm through the courts for quashing competition in the chip processor market.
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