Last month, an appellate court addressed for the first time whether a pharmaceutical company violates the antitrust laws by withdrawing an older brand-name drug before patent expiration in an effort to convert patients to a newer, improved form of the drug to maintain its profits—so-called “product hopping.” In New York v. Actavis, No. 14-4624, the U.S. Court of Appeals for the Second Circuit held that such product hopping may violate antitrust laws and further, upheld an extraordinary nationwide injunction requiring defendants Actavis and its subsidiary Forest Laboratories to continue manufacturing the older version of their Alzheimer’s drug Namenda for 30 days after generic forms of that drug become available. Although the defendants' Petition for Rehearing En Banc remains pending, the panel decision—whether or not it stands—raises a number of questions about when a patent monopolist can be obligated to keep an older, even inferior, product on the market in order to help generic competitors who will make the older product following patent expiration.
Reprinted with permission from the July 13, 2015 edition of the NEW YORK LAW JOURNAL © 2015 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 or firstname.lastname@example.org. # 070-07-15-25