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No Second Chance for AbbVie Monopoly Case

PHILADELPHIA (CN) - A federal judge who nixed antitrust claims over AbbVie's payments to keep generic versions of its products out of the market shot down the Federal Trade Commission's request for reconsideration.

Reverse-settlement payments are a common practice in the drug industry in which manufacturers of patented drugs sue generic manufacturers and then pay the generic maker to stay out of the market.

The FTC's lawsuit against AbbVie was one of a handful of actions questioning the legality of such deals. In AbbVie's case, the litigation involved its synthetic-testosterone product AndroGel.

AbbVie, Unimed Pharmaceuticals and Besins Healthcare sued Teva Pharmaceuticals in 2011, the largest generic manufacturer in the world, claiming that Teva's testosterone product violated their patents.

An ensuing settlement required Teva to delay the entry of its drug until 2014, with AbbVie agreeing to supply Teva with a generic version of the cholesterol drug TriCor.

U.S. District Judge Harvey Bartle dismissed the FTC's claims, writing that "Teva was merely defending itself from what it deemed a sham litigation."

After the Third Circuit ruled this year that non-cash exchanges could fall within the purview of anticompetitive reverse-settlements, however, the FTC urged Judge Bartle to reconsider.

Bartle refused Tuesday, saying that the case considered by the Third Circuit involved a single drug, whereas the case against AbbVie involves both TriCor and AndroGel.

"There is nothing in the complaint to demonstrate that it did anything other than to facilitate competition in the market for that drug," Judge Bartle wrote. "The anticompetitive effects that the court dealt with in King Drug are simply absent here."

Bartle noted that the settlement agreement at issue required Teva to pay AbbVie for TriCor. AbbVie would not simply produce the drug for free.

Though the Supreme Court ruled in FTC v. Actavis that reverse-settlements could violate antitrust law, the 2013 decision left for lower courts to fill in the law.

That decision led the Third Circuit to revive the pay-to-play case this year in King Drug Co. of Florence v. SmithKline Beecham Corp.

"The conclusion of the Court of Appeals in King Drug that Actavis is not limited to reverse payments made in cash is not surprising," Judge Bartle wrote. "However, it does not affect our decision here where no reverse payments in any form as defined by the Supreme Court or our Court of Appeals are set forth in the complaint."

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