Three recent district court decisions have addressed motions by branded pharmaceutical manufacturers to obtain summary judgment in antitrust cases based on the Noerr-Pennington doctrine. In two cases, the courts rejected the branded manufacturers’ motions, but in a third case, the motion was granted.  

In Teva Pharmaceuticals USA, Inc. v. Abbott Laboratories, antitrust plaintiffs asserted sham litigation claims against defendant Abbott Laboratories relating to Abbott’s commencement of paragraph IV litigation against generic firms seeking to market generic TriCor. Abbott moved for summary judgment on the grounds that its patent claims were reasonable and thus immune from antitrust liability under the Noerr-Pennington doctrine. Generally, a firm’s decision to pursue litigation is protected from antitrust challenge under the Noerr-Pennington doctrine, which insulates legitimate government petitioning from antitrust scrutiny. The immunity can be forfeited, however, if the petitioning is a “sham,” defined as objectively baseless and subjectively motivated by an attempt to interfere directly with the business of a competitor instead of to vindicate one’s rights in court. The court concluded that it could not determine whether Abbott’s arguments were objectively and subjectively reasonable without a full trial on the merits – particularly with respect to the issue of infringement. The court did, however, dismiss the Walker Process claims on Noerr-Pennington grounds because there was no evidence that could establish that Abbott’s conduct before the PTO was improper, a necessary condition for such a claim. Abbott has settled with several of the plaintiffs in the case, including the generic companies and direct purchasers.

In Louisiana Wholesale Drug Co., Inc. v. Sanofi-Aventis, No. 07 Civ. 7343 (HB) (S.D.N.Y. Oct. 14, 2008), antitrust plaintiffs alleged that a Citizen’s Petition submitted by Sanofi-Aventis relating to a generic version of Sanofi’s drug Arava had the effect of delaying generic entry. Sanofi moved for summary judgment on the grounds that, inter alia, the matters raised in its Citizen’s Petition were objectively and subjectively reasonable and thus protected under Noerr-Pennington. The court, however, like the court in TriCor, concluded that a full trial and record were necessary to resolve this issue. The trial in the case occurred this month, and resulted in a jury verdict in favor of Sanofi.  

The antitrust defendant in Braintree Laboratories, Inc. v. Schwarz Pharma, Inc., however, was successful in obtaining summary judgment in sham litigation claims based on the Noerr-Pennington doctrine. Braintree had brought paragraph IV litigation against generic company Schwarz Pharma in connection with Braintree’s drug Miralax, and Schwarz Pharma had asserted antitrust and tortious interference counterclaims based on sham litigation. The court noted that Noerr- Pennington (which applied equally to the antitrust and tortious interference claims) immunized the filing of litigation unless it was objectively baseless. The court noted that although Braintree may have acknowledged that its patent was weak, the patent would retain a presumption of validity, and therefore Schwarz Pharma failed to prove that Braintree’s lawsuit was objectively baseless such that “no reasonable litigant could realistically expect success on the merits.” In addition, the court concluded that Braintree had advanced arguments on validity and infringement that were ultimately “colorable” and “non-frivolous”. Thus, Braintree’s infringement suit was immune from challenge and Schwarz Pharma’s counterclaims were rejected.