On August 8 2009 the US District Court for the District of New Jersey denied a motion to dismiss by the defendants in In re Neurontin Antitrust Litigation,(1) a case filed against Warner-Lambert (now owned by Pfizer), based on allegations that Warner-Lambert had fraudulently obtained patents and pursued sham patent litigation relating to its drug Neurontin. The defendants had argued that each of the actions challenged by the plaintiffs was not a proper basis for antitrust liability, but the court allowed the plaintiffs to challenge the alleged conduct based on the theory that the actions, taken together, amounted to an overall monopolization scheme.

The plaintiffs, a class of direct purchasers of epilepsy drug Neurontin, alleged that the defendants had:

  • fraudulently obtained certain patents;
  • manipulated the patent approval process;
  • improperly listed certain patents in the Orange Book; and
  • filed and prosecuted baseless infringement lawsuits relating to these patents.

The plaintiffs also alleged that the defendants had engaged in fraudulent off-label promotion. The defendants moved to dismiss on various grounds:

  • They contended that the plaintiffs lacked "antitrust injury" because they had failed to show that each of the alleged wrongful acts proximately harmed the plaintiffs by delaying the launch of generic products.
  • They asserted that none of its underlying actions, viewed independently, violated antitrust laws.
  • They contended that much of the conduct challenged by the plaintiffs involved government petitioning that was immune from antitrust scrutiny under the Noerr-Pennington doctrine.

The court found that the plaintiffs had pled an overall monopolization scheme and that each of the components of the conduct challenged by the plaintiffs did not have to be separately actionable. The court held that the "injuries arguably inflicted by Warner-Lambert's allegedly anticompetitive activities should... be viewed as a whole". The court rejected the arguments by the defendants, relying on Intergraph Corp v Intel Corp,(2) that the plaintiffs' claims should be dismissed because none of the challenged specific actions was "independently actionable under the federal antitrust laws". In Intergraph the Federal Circuit had ruled that a court should evaluate each of a plaintiff's theories of antitrust liability independently even if the issues are interrelated. The court also held that it could not rule on the Noerr-Pennington defence at the pleading stage because the plaintiffs were entitled to seek discovery on whether Warner-Lambert's patent litigation claim was brought without adequate basis.

For further information on this topic please contact Sabrina Cochet at Hogan & Hartson LLP by telephone (+1 212 918 3000), fax (+1 212 918 3100) or email (shcochet@hhlaw.com).


(1) 2009 WL 2751029, MDL No 1479 (D NJ, Aug 28 2009).

(2) 195 F 3d 1346, 1366 (Fed Cir 1999).

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