Seventh Circuit urged to review AbbVie antitrust ruling
Twenty US states, the US Federal Trade Commission (FTC), and consumer groups have asked the Seventh Circuit of the US Court of Appeals to reconsider a case claiming that AbbVie strived to prevent competition to its immunosuppressant drug, Humira.
The States of Washington, California, Colorado, Connecticut, Delaware, Idaho, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nebraska, New Mexico, New York, North Carolina, Oregon, Rhode Island, Virginia, and Wisconsin filed the amicus briefs on 13 October, alongside the Amici Curiae Consumer Action Program and the US Public Interest Research Group.
According to the initial suit, filed by the United Food and Commercial Workers (UFCW), Local 1500, AbbVie allegedly obtained a “thicket” or “minefield” of more than 100 deficient patents and, despite the weakness of its patents, “embroiled its rivals” in protracted litigation designed to deter them from launching.
UFCW claimed that AbbVie paid its would-be biosimilar rivals to stop challenging AbbVie’s patents and to refrain from selling their products in the US for at least five years.
The complaint also claimed that “AbbVie allegedly entered into “market division” agreements with its rivals in which AbbVie maintained its domestic monopoly in return for forfeiting its European one”.
Thirdly, it said that AbbVie used its European licences as large and unjustified reverse payments to keep rivals out of the domestic market.
The net result, according to UFWC, was that “AbbVie has maintained its Humira monopoly in the US, where patients and customers are, in effect, subsidising lower prices charged for biosimilars in Europe”.
However, on June 8, Judge Manish Shah of the US District Court for the Northern District of Illinois sided with AbbVie, holding there was no “one size fits all” requirement for settling patent litigations in different jurisdictions.
In the filings at the Seventh Circuit this week, the groups argued that the district court relied on flawed analyses that, if affirmed, will embolden anticompetitive practices in the pharmaceutical industry and hamstring antitrust enforcers”.
They pointed to the court's finding that any agreements granting market entry before patent expiration are automatically immune from antitrust scrutiny. This, they said, “directly contradicts the Supreme Court’s teaching that patent settlements enjoy no presumption of legality”.
The groups have also argued that the district court “assumed without basis that allowing rivals to enter in Europe created cognisable procompetitive effects” despite the complaint alleging harm only in the US.
According to the filing, AbbVie’s biologic Humira has been the highest-earning drug in the US for the last six years, at a cost of up to $50,000 per patient everyNorthern District of Illinois year.
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