Healthcare Industry News: Solvay Pharmaceuticals
News Release - February 2, 2009
Federal Trade Commission Files Complaint Against Par Pharmaceutical Over Court-Approved AndroGel(R) Litigation SettlementWOODCLIFF LAKE, N.J., Feb. 2 (Healthcare Sales & Marketing Network) -- Par Pharmaceutical Companies, Inc. (NYSE: PRX ) today announced that it learned after the close of business on Friday, January 30, 2009 that the Federal Trade Commission and the California Attorney General filed a lawsuit against Par in the U.S. District Court for the District of Central California. The FTC lawsuit makes antitrust and other allegations about a patent settlement agreement that was approved by the U.S. District Court for the Northern District of Georgia in 2006. The 2006 court-approved settlement ended litigation between Par Pharmaceutical, Paddock Laboratories and plaintiff Solvay Pharmaceuticals over Paddock and Par's filing of an Abbreviated New Drug Application for a generic version of Solvay's AndroGel® 1% testosterone gel product.
Under the terms of the 2006 court-approved settlement, Par is permitted to begin marketing testosterone gel 1% in August 2015 -- five years prior to the expiration of the AndroGel® patent, which expires on August 30, 2020, excluding AndroGel®'s six-month pediatric marketing exclusivity.
Par was the second ANDA filer for testosterone gel 1% and therefore not eligible for 180 days of marketing exclusivity. However, the 2006 settlement allowed Par's early entry date to be the same as that obtained by the first ANDA filer. Par issued a press release on September 13, 2006 addressing further details of the 2006 court-approved settlement and contemporaneous business agreements.
The U.S. District Court for the Northern District of Georgia Approved the Settlement in 2006
In September 2006, Par's settlement with the makers of AndroGel® was entered and approved by the U.S. District Court for the Northern District of Georgia. The court's Consent Judgment described the settlement as "a good faith final settlement agreement . . . ." The court's Consent Judgment added that the settlement provided the parties with the "opportunity to more productively use money and other resources that would have been spent in the continued prosecution and defense of this Litigation, to the benefit of the Parties and consumers alike . . . ." Furthermore, in ending the three-year patent litigation in the Northern District of Georgia, the Consent Judgment expressly acknowledged that the settlement enabled generic entry "five years earlier than could be achieved if [the generic companies] were permanently enjoined during the life of the  patent."
The 2006 Court-Approved Settlement Was Approved Under the Same Eleventh Circuit Law that Rejected the FTC's Schering-Plough Case
In 2001, the FTC brought an enforcement action against Schering-Plough Corporation and Upsher-Smith Laboratories, Inc. in which the FTC's judge concluded that there was nothing anticompetitive about the parties' settlement of patent litigation and entry into contemporaneous business arrangements. Although the FTC reversed the findings of its own administrative law judge, the U.S. Court of Appeals for the Eleventh Circuit vacated the FTC's decision and unanimously held that the final patent settlement agreement complied with the antitrust laws. Schering-Plough Corp. v. FTC, 402 F.3d 1056 (11th Cir. 2005). The Eleventh Circuit sits in Atlanta, Georgia, and the U.S. District Court for the Northern District of Georgia is located within the Eleventh Circuit.
Since 2005, the Eleventh Circuit's Schering-Plough decision has been followed by numerous federal circuit and district courts, including by the Second Circuit in In re Tamoxifen Citrate Antitrust Litigation, 466 F.3d 187 (2d Cir. 2006), and by the Federal Circuit in In re Ciprofloxacin Hydrochloride Antitrust Litigation, 544 F.3d 1323 (Fed. Cir. 2008). No federal court has adopted the FTC's view of final pharmaceutical patent settlements.
Par Pharmaceutical Companies, Inc. develops, manufactures and markets generic drugs and innovative branded pharmaceuticals for specialty markets. For press release and other company information, visit www.parpharm.com.
Safe Harbor Statement
Certain statements in this news release constitute "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995. To the extent any statements made in this news release contain information that is not historical, these statements are essentially forward-looking and, as such, are subject to known and unknown risks, uncertainties and contingencies, many of which are beyond the control of the Company, which could cause actual results and outcomes to differ materially from those expressed herein. Risk factors that might affect such forward-looking statements include those set forth in Item 1A of the Company's Annual Report on Form 10-K for the year ended December 31, 2007, in Item 1A of the Company's subsequent Quarterly Reports on Form 10-Q, in other of the Company's filings with the SEC from time to time, including Current Reports on Form 8-K, and on general industry and economic conditions. Any forward-looking statements included in this news release are made as of the date hereof only, based on information available to the Company as of the date hereof, and, subject to any applicable law to the contrary, the Company assumes no obligation to update any forward-looking statements.
Source: Par Pharmaceutical
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