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18 November 2020AmericasRory O'Neill

Third Circuit under fire over FTC v AbbVie ruling

The US Federal Trade Commission and AbbVie both want a federal appeals court to rehear a lawsuit accusing the drug company of quashing competition through sham patent litigation.

A three-judge panel at the US Court of Appeals for the Third Circuit ruled in September that AbbVie and Besins’ patent lawsuit against Perrigo was a sham aimed at delaying a competing product from coming to market.

But the Third Circuit declined to issue an injunction, as requested by the FTC, as it was not convinced there was a threat of the drug companies repeating the antitrust violations.

The FTC has asked the Third Circuit to rehear the case en banc, arguing that the panel’s refusal to issue an injunction would encourage “profitable misconduct”.

“Although the panel recognised that it ‘must not immunize a brand-name manufacturer’ which ‘thwart[s] competition’ in this manner, the panel’s ruling does precisely that by depriving consumers of any relief for these deliberate abuses,” the FTC said in a court filing.

“The panel decision also could motivate other drug companies to file abusive sham litigation to secure years of unwarranted monopoly profits by signalling that even if they ‘lose’ at trial, the federal courts may give them at least one free pass,” the document continued.

AbbVie also wants an en banc rehearing, on the basis that the Third Circuit shouldn’t have found the Perrigo lawsuit to be a sham at all.

According to AbbVie, an “antitrust plaintiff must prove that the defendant brought the challenged lawsuit for the subjective purpose of impeding a competitor through the litigation process itself, rather than through a successful litigation outcome”.

The drugmaker claims that the FTC did not establish any subjective intent to thwart competition in AbbVie’s lawsuit against Perrigo.

AbbVie claims that business planning documents and settlement negotiations show that it believed the Perrigo lawsuit had a reasonable chance of success.

Both sides claim the Third Circuit’s decision violates US Supreme Court and other judicial precedent and should be overturned.

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Americas
2 October 2020   A US appeals court has cancelled a $448 million antitrust bill for AbbVie, in a blow for the US Federal Trade Commission.
Americas
2 July 2018   Pharmaceutical companies AbbVie and Besins Healthcare have been ordered to pay the US Federal Trade Commission $448 million for using “sham litigation” to block access to generic versions of a testosterone drug.
Americas
3 June 2021   AbbVie has again urged the US Supreme Court to save it from claims of filing sham litigation to block competition for testosterone treatment AndroGel.

More on this story

Americas
2 October 2020   A US appeals court has cancelled a $448 million antitrust bill for AbbVie, in a blow for the US Federal Trade Commission.
Americas
2 July 2018   Pharmaceutical companies AbbVie and Besins Healthcare have been ordered to pay the US Federal Trade Commission $448 million for using “sham litigation” to block access to generic versions of a testosterone drug.
Americas
3 June 2021   AbbVie has again urged the US Supreme Court to save it from claims of filing sham litigation to block competition for testosterone treatment AndroGel.