On September 15, 2014, the New York State Attorney General filed a lawsuit against a brand pharmaceutical manufacturer alleging anticompetitive “product hopping.” The suit alleged that when defendant Actavis executed a “forced switch” of the market for its blockbuster Alzheimer’s drug, Namenda IR, to impel patients to purchase a new version, it engaged in product hopping and violated the Sherman Act. However, whether product hopping—selling a new drug having minor differences from an existing drug to stymie generic competitors—should be subject to antitrust liability is hotly contested. In this article, Fenwick’s Vikram Iyengar presents a set of factors that a court could use to determine whether product hopping conduct is indeed exclusionary under § 2 of the Sherman Act. Read the full article in the Journal of the Patent and Trademark Office Society.
Originally published in the Journal of the Patent and Trademark Office Society.
“Should Pharmaceutical Product Hopping Be Subject to Antitrust Scrutiny?, 97 J. Patent & Trademark Office Soc. 663 (2015).”