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AbbVie's Patent Thicket: A Test of Sherman Act's Section 2

Strategic Insights

— 1 min read

AbbVie, a pharmaceutical company, owns the patent for Humira, one of the world's best-selling and most profitable drugs. The company has obtained 132 additional patents related to the medicine, which expire in 2034. Welfare-benefit plans that pay for Humira on behalf of covered beneficiaries have sued AbbVie, arguing that these additional patents and the associated litigation violate sections 1 and 2 of the Sherman Antitrust Act.

Key Takeaways:

  • AbbVie's 132 additional patents for Humira, which expire in 2034, are the subject of a lawsuit alleging antitrust violations under Section 2 of the Sherman Act.
  • The plaintiffs, welfare-benefit plans, argue that these patents create a "patent thicket" that blocks competition and allows AbbVie to charge monopoly prices.
  • AbbVie has not defended itself on the ground that the plaintiffs, as indirect purchasers, are blocked by the Illinois Brick Co. v. Illinois doctrine.
  • The case highlights the complex interplay between patent law and antitrust law in the pharmaceutical industry.
  • The Hatch-Waxman Act regulates copycat entry in the drug market, but AbbVie's patent thicket may limit the ability of competitors to enter the market.
  • The district court dismissed the complaint, but the plaintiffs have appealed to the Seventh Circuit Court of Appeals.

Statistics:

  • 132: The number of additional patents related to Humira that AbbVie has obtained, which expire in 2034.
  • $15 billion: The annual revenue generated by Humira, making it one of the world's best-selling and most profitable drugs.
  • 180 days: The exclusive right granted to the first applicant to sell a generic version of the drug.
  • 30 months: The timeframe during which the Food and Drug Administration would forbid sales of a generic version of the drug in the event of litigation.

Sources:

  • United States v. Line Material Co., 333 U.S. 287 (1948)
  • Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172 (1965)
  • Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977)
  • Hatch-Waxman Act, 21 U.S.C. § 355
  • http://www.govinfo.gov/content/pkg/USCOURTS-ca7-20-02402/pdf/USCOURTS-ca7-20-02402-0.pdf

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