Appeals Court Says “So What?” to Patent Thickets

AbbVie has successfully defended against a suit that accused the Humira® maker of violating antitrust laws by agreeing to settlements with all of the other biosimilar adalimumab makers and that it impeded competition through its filing of 132 patents on the drug.

U.S. Circuit Court Judge Frank Easterbrook ruled on August 1 that the patent thicket did not constitute a monopoly and that signing settlements such as these “are traditional resolutions of patent litigation” and that AbbVie did not pay any of the other manufacturers to settle. The case, brought by the City of Baltimore and a group of welfare-benefit plans, was originally dismissed in District Court. The affirmation of the appellate court in the Abbvie Patent Case will likely affect the U.S. Senate’s request of the Federal Trade Commission to investigate the anticompetitive effects of these patent thickets.

Judge Easterbrook, while acknowledging that several of the 132 patents held by AbbVie may be “weak” patents, they were patents nonetheless. The fact that the main composition-of-matter patent on Humira expired in 2016, but the existence of the patent thicket delays competition until seven years later, did not sway the jurist.

It is unknown whether the Circuit Court’s ruling will have an effect on the Senate’s current request that the Federal Trade Commission (FTC) investigate patent thickets. If nothing else, the FTC should investigate why Enbrel®’s approved biosimilar competitors are unable to launch until 2029.

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