This article is provided to FT.com readers by Pharmawire—a news service focused on providing insight into the most price sensitive issues in the global pharmaceutical market. www.pharmawire.com
--------------------------------------------------------------------------------------------------------
Abbott is facing a trial and key motion hearing this month in an antitrust case involving AIDS drug Norvir, according to an attorney involved and court documents, Pharmawire reports.
The case is scheduled to go to trial on 18 April, said Hollis Salzman, who is co-lead counsel representing the plaintiffs, Service Employees International Union Health and Welfare Fund Advisors. A summary judgment hearing is scheduled for 24 April.
Judge Claudia Wilken of the Northern District of California will hear the case.
Abbott is seeking summary judgment on three of the plaintiff’s allegations: monopolization, unfair competition, and unjust enrichment. The company was sued in 2004 for quintupling the price of Norvir, which is often used to ”boost” the effect of protease inhibitors. The plaintiffs allege that Abbott hoped to move patients to its combo pill Kaletra, instead of competitors’ protease inhibitors that require Norvir as a booster.
The summary judgment hearing will also include a determination of the scope of Abbott’s Norvir patents, Salzman said.
A key point in Abbott’s antitrust defense is that its patents on Norvir amount to a ”permissible monopoly” - particularly its ’157 patent, which covers a ”method of improving” other protease inhibitors, court documents state. That ”permissible monopoly” would shield Abbott from antitrust charges.
”Abbott’s patents give Abbott every right to exclude competitors altogether,” court documents state. The company also argues that its permissible monopoly did not extend ”beyond the scope of the patent.”
Abbott’s attorneys have previously declined to comment on the company’s defense strategy. ”We’re confident that when the evidence is reviewed,” an Abbott spokesperson said, ”that we’ll prevail in the case.”
Salzman added that the plaintiffs are also moving to get certain court documents unsealed.
This news service previously reported that damages for Abbott could fall within the hundreds of thousands, and also include a possible price rollback on future sales of Norvir as well as monetary relief to the health plans that overpaid for the drug.
Three attorneys interviewed by this news service suggested that antitrust regulations in this area are murky, since the law focuses primarily on collusion between companies.
Daniel Boehnen, a founder of law firm McDonnell, Boehnen, Hulbert & Berghoff, noted that - generally speaking - pricing can become an antitrust issue when there are agreements between different corporate entities to set prices at a certain level. The issue of pricing can also come up when the sale of one product is tied to the sale of another.
Raising the price of an older product to move consumers to a newer one is not strictly antitrust, noted Jay Lessler, a principal at intellectual property law firm, Darby & Darby. ”It’s done by companies all the time,” he said. ”That by itself is not an anticompetitive [action].”
Mit Spears, a partner at Ropes & Gray who specializes in pharmaceutical antitrust, noted that antitrust regulators are generally uninterested in pricing, particularly unilateral moves by one company.
”I don’t think antitrust is ever going to tell you what you can and cannot charge for your product,” he said. ”They’re interested in competition.”
He noted that an exception would be if Abbott tied Norvir to the sale of a generic, raising the price of that drug.
”All of these products are going out there in a complex and complicated market,” Spears said.
Abbott has a market cap of USD 85.3bn.
--------------------------------------------------------------------------------------------------------
For more information or to inquire about a trial please email sales@pharmawire.com or call Americas: +1 212-500-1384 or Europe: + 44 (0)20 7059 6251
