FTC Pursues AbieVie over its Suit to Retain its Testosterone Patent

[Jinzang]

From the article:

The makers of the testosterone therapy AndroGel could not have prevailed on patent infringement actions they filed against a generic drug maker over the medication, a federal judge has ruled. The decision is a win for the Federal Trade Commission, which is contending that the drugmakers only filed the patent actions to delay a generic form of the drug from entering the market.
U.S. District Judge Harvey Bartle of the Eastern District of Pennsylvania on Sept. 15 granted the FTC summary judgment on one of two prongs needed to establish that the defendants, AbbVie and Besins Healthcare, engaged in monopolistic conduct by filing the allegedly sham patent lawsuit against Teva and Perrigo Co. Specifically, he determined the patent lawsuits were "without question objectively baseless."

"AbbVie and Besins could not realistically have expected success on the merits of this issue or have had a reasonable belief that they had a chance to prevail," Bartle said. "The FTC is entitled to partial summary judgment on the objective baselessness element of the sham litigation prong of their illegal monopolization claim. To the extent that the defendants move for summary judgment on objective baselessness, their motion will be denied."

The second prong that the FTC will need to prove in order to succeed on its claims involves showing that the underlying patent lawsuits were intended to be used in an anti-competitive manner by interfering with a competitor's business interests. Bartle noted that this question was not before the court.