Drugmaker AbbVie Can’t Convince Judge on ‘Sham’ Lawsuits

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By Eleanor Tyler

Drugmaker AbbVie Inc. is headed to trial to fight the Federal Trade Commission’s allegations that it overcharged customers for topical testosterone product Androgel.

Pennsylvania federal Judge Harvey Bartle ruled Sept. 15 that the FTC has proven that AbbVie’s patent infringement lawsuits against rival generic drugmakers Teva Pharmaceuticals USA, Inc. and Perrigo Co. were objectively baseless — a key link in proving that AbbVie abused its monopoly in Androgel instead of merely protecting its legal patent ( FTC v. AbbVie Inc. , 2017 BL 326032, E.D. Pa., No. 14-5151, 9/15/17 ).

The court’s ruling gets the FTC half way to winning its monopolization claim against AbbVie, notable since “sham” litigation is hard to prove. “It is difficult for a plaintiff to be victorious in making out a claim of sham litigation, let alone win an element at the summary judgment stage,” Rutgers Law School antitrust Professor Michael A. Carrier told Bloomberg BNA.

At trial, the FTC will have to prove that AbbVie and its partner Besins Healthcare Inc. intended to use its patent lawsuits against Teva and Perrigo as a weapon to delay competition.

Teva and Perrigo sought approval from the Food and Drug Administration for generic versions of AndroGel. AbbVie’s patent lawsuits against them slowed down their FDA approval, which the FTC said was AbbVie’s express intent.

Bartle reviewed the patent history and agreed with the FTC that "[t]he patent lawsuits against Teva and Perrigo were without question objectively baseless.”

AbbVie asked the court to rule against the FTC’s claim that it had monopoly power in the market, but Bartle said genuine factual disputes about AbbVie’s monopoly power preclude a ruling on that issue at this stage. “This complex issue will have to await a trial,” he said.

The court hasn’t set a schedule for any further proceedings.

Bartle has only granted summary judgment in one other monopolization case, according to Bloomberg Law’s Litigation Analytics. That case, Chemi SPA v. Glaxosmithkline, also involved a plaintiff’s allegation of a baseless patent lawsuit. However, Bartles’ ruling in Chemi SPA was on preclusion rather than on the sham litigation part of that plaintiff’s claim.

The FTC’s lawsuit against AbbVie also claimed that AbbVie entered an illegal agreement with Teva to delay its competition in the AndroGel market, but the court dismissed that claim earlier in the case.

The FTC sued AbbVie, Besins, Abbott Laboratories, and Unimed Pharmaceuticals LLC. Abbott spun off AbbVie in 2013, sending the patent for AndroGel along as an asset. Unimed is an AbbVie subsidiary.

To contact the reporter on this story: Eleanor Tyler in Washington at etyler@bna.com

To contact the editor responsible for this story: Fawn Johnson at fjohnson@bna.com

For More Information

The court's opinion is at http://src.bna.com/sB4.

Bloomberg Law subscribers can access Litigation Analytics at http://src.bna.com/sC3

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