Blog Big Molecule Watch May 26, 2020

Recent Developments in Humira (adalimumab) Antitrust Suit

We have previously reported on the class action suit against AbbVie alleging misconduct and antitrust violations in connection with AbbVie’s assertion of patents to prevent the sale of biosimilar versions of Humira® in the United States.  AbbVie had moved to dismiss the lawsuit.

On May 15, 2020, the plaintiffs filed a Notice of Supplemental Authority, arguing that a May 6, 2020 ruling in another antitrust case (Nuance Communications, Inc. v. Omilia Natural Language Solutions, Ltd., No. 19-1138, 2020 WL 2198362 (D. Mass. May 6, 2020)) provided further support for their opposition to AbbVie’s motion to dismiss.  The plaintiffs argued that the Nuance decision addresses, for example, whether acquiring and wielding a large number of patents can support a claim for violation of Section 2 of the Sherman Act and whether filing repeated patent infringement suits against would-be competitors can support a claim for violation of Section 2 of the Sherman Act.

AbbVie responded on May 19, 2020, arguing that the Nuance decision was irrelevant.  AbbVie argued first that the conduct alleged in the Nuance case – allegations that the acquisition of companies in order to amass patents that could then be used to threaten baseless litigation – is fundamentally different from “internal patent development” of the kind that AbbVie had allegedly engaged in.  Next, AbbVie argued that, unlike in Nuance, where the patent holder tried to eradicate competition through baseless litigation, AbbVie tried to license its patents to competitors so that they could enter the market prior to patent expiry.  Finally, AbbVie argued that Nuance did not support Plaintiffs’ contention that the court should not decide on a motion to dismiss if the alleged conduct is protected by Noerr–Pennington immunity, a doctrine that shields certain activity intended to influence the government.  Unlike Nuance, AbbVie argued, there was no allegation of sham litigation in the complaint against AbbVie.

The case is In re Humira (Adalimumab) Antitrust Litig., No. 1:19-cv-1873 (N.D. Ill.).

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