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FTC appeals to Supreme Court in AndroGel case


By Joe Carlson
Posted: October 4, 2012 - 7:30 pm ET
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In an appeal of what has become known as the “turducken” ruling on pay-for-delay pharmaceutical manufacturing, the Federal Trade Commission has asked the U.S. Supreme Court (PDF) to throw out corporate agreements that it says allowed a subsidiary of Abbott Pharmaceuticals to buy off potential competitors in the lucrative market for synthetic testosterone.

The FTC accused Abbott-owned Solvay Pharmaceuticals of violating antitrust law by paying competitors Watson Pharmaceuticals, Paddock Laboratories and Par Pharmaceuticals not to introduce generic equivalents of its branded AndroGel testosterone drug.

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The companies had received Food and Drug Administration permission to sell generic versions of AndroGel, but agreed to accept between $10 million and $30 million from Solvay to keep their products off the market until 2015. The FTC said Solvay had estimated that competition from a generic would cause it to lose 90% of its branded sales of the drug, cutting profits by $125 million a year.

A district court threw out the FTC's lawsuit, and the 11th U.S. Circuit Court of Appeals in Atlanta agreed in April. The 11th Circuit judges wrote that the FTC was attempting to resolve a patent dispute through antitrust litigation in a way that contradicted its earlier rulings on competition and patient laws.

“If we did that, we would be deciding a patent case within an antitrust case about the settlement of the patent case, a turducken task,” the 11th Circuit wrote. “Even if we found that prospect palatable, we would be bound to follow the simpler recipe for deciding these cases that is laid out in our existing precedent. As we interpret that precedent, the FTC loses this appeal.”

In a written response to a request for comment on the Supreme Court filing, Abbott Pharmaceuticals noted that the lower courts had ruled in its favor and said the company is "confident that these decisions will be upheld."


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