Should Pharmaceutical Product Hopping Be Subject To Antitrust Scrutiny?

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.