3rd Circuit Weighs In On Product-Hopping


On Sept. 28, 2016, in Mylan Pharmaceuticals Inc. v. Warner Chilcott Public Limited Co. (Doryx), the Third Circuit affirmed the lower court’s grant of summary judgment rejecting antitrust claims brought against Warner Chilcott for alleged “product hopping” with respect to its drug Doryx (delayed-release doxycycline hyclate). The court distinguished other product-hopping cases —including the recent Second Circuit decision in Namenda — and held that the plaintiff, generic drug manufacturer Mylan, failed to put forth sufficient evidence that Warner Chilcott possessed monopoly power or engaged in anti-competitive conduct. While its decision turned on the particular facts of the case, the Third Circuit rejected several sweeping arguments that antitrust plaintiffs regularly advance in pharmaceutical antitrust cases.

Originally published in Law360 - October 31, 2016.

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