FTC Wants AbbVie AndroGel Appeal Denied

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The Federal Trade Commission (FTC) has asked the Supreme Court to deny an AbbVie request that it hear its appeal of a federal district court decision that the company’s patent lawsuits against Teva and Perrigo over ANDAs for its AndroGel testosterone treatment were sham suits intended to delay generic competition. An online post from IP Watchdog says the FTC first says that since the 3rd Circuit Court of Appeals upheld only part of the district court’s ruling and remanded the case for further proceedings, the high court could simply refuse to hear the appeal because the case is still moving forward in the lower courts. The 3rd Circuit affirmed the sham suit finding but reversed the district court finding that AbbVie’s settlement with Teva constituted an illegal reverse payment agreement.

If the Supreme Court rejects the position that the case is not ready for high court action, the FTC then argues that both the district and circuit courts properly found subjective intent in the circumstantial evidence of the case, particularly in that AbbVie’s attorneys were very experienced with patent matters and would know that litigation would delay generic competition.

Although AbbVie had settled the 2011 Teva and Perrigo suits, the FTC sued the company in 2014, alleging that its suits were shams meant purely to delay market entry of AndroGel generics.

A Pennsylvania federal court ordered the company to pay $448 million in disgorgement.

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