White & Case Wins Dismissal of the FTC’s AndroGel® Case

Washington, DC, February 23, 2010 ... On February 23, 2010, the Honorable U.S. District Judge Thomas W. Thrash, Jr. granted defendants’ motion to dismiss the Federal Trade Commission’s complaint in the AndroGel® case.

White & Case represented Par Pharmaceuticals and Paddock Laboratories in their joint motion to dismiss the Federal Trade Commission AndroGel® case.

The FTC had alleged, inter alia, that a final patent settlement agreement among Solvay Pharmaceuticals and Watson Pharmaceuticals, and a separate consent decree settlement among Solvay and Par Pharmaceuticals and Paddock Laboratories violated the U.S. antitrust laws.  The final settlement agreements and consent decree settled two patent infringement lawsuits brought by Solvay relating to Solvay’s AndroGel patent.

The Court’s Order is premised in part on the Eleventh Circuit’s 2005 decision in Schering-Plough Corp. v. FTC, a case in which White & Case represented defendant Upsher-Smith Laboratories in overcoming antitrust claims made by the FTC.  The Order quotes the Schering-Plough opinion, stating that "By their nature, patents create an environment of exclusion, and consequently, cripple competition.  The anticompetitive effect is already present."  Order at 12 (quoting Schering-Plough, 402 F.3d 1056, 1065-66). 

The Court continued:  "What we must focus on is the extent to which the exclusionary effects of the agreement fall within the scope of the patent’s protection."  Order at 16 (quoting Schering-Plough, 402 F.3d at 1075-76).  "Because the Plaintiffs do not allege that the settlements exceed the scope of the ‘894 patent . . . [the] claims must be dismissed."  Order at 16.

"The final settlement and consent decree involving Par and Paddock shortened the Solvay patent by at least five years, helping consumers," said J. Mark Gidley, Chair of White & Case’s Global Antitrust Practice.

Par and Paddock were represented by Mark Gidley, Eric Grannon, and Stephen LeBlanc of the Washington, DC office of White & Case LLP.

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