Posts Tagged: "abbott laboratories"

The FTC is seeking a court judgment declaring that the defendants’ conduct violates the FTC Act, ordering the companies to disgorge their ill-gotten gains, and permanently barring them from engaging in similar anticompetitive behavior in the future. At issue in the alleged sham patent infringement suit is an ingredient in branded AndroGel, called isopropyl myristate or IPM. IPM is known as a “penetration enhancer” because it speeds the delivery of the drug’s active ingredient, testosterone, through the skin and into the bloodstream. The patent on branded AndroGel covers only a formulation using IPM as the penetration enhancer, according to the FTC complaint.

The largest patent infringement verdict in U.S. history did not stand the test of time at the United States Court of Appeals for the Federal Circuit. After a five-day trial, the jury found Abbott liable for willful infringement. The jury rejected Abbott’s argument that the asserted claims were invalid, and awarded Centocor over $1.67 billion in damages. The Federal Circuit reversed and held that the asserted claims were invalid for failure to meet the statutory written description requirement, erasing the $1.67 billion verdict.

I am skeptical about the prospects for invalidating patents on drugs, particularly important or blockbuster drugs. I also question whether anti-patent do-gooders in the biotech and pharma space are really causing more harm than good through attempts to bust patents on blockbuster drugs. According to their own press release, PUBPAT acknowledges that the tablet is heat stable and does not need to be refrigerated like prior versions of the drug. They seemingly make the argument, although not directly, that because this makes it much more convenient for patients it is unfair to charge prices sufficient to recoup R&D and a premium to make the speculative R&D reasonably profitable for investors. Of course, the fact that the drug in question is extremely convenient for patients is not a reason to invalid the claims, and in fact is likely a compelling reason why in this instance the patent claims cover a truly novel and nonobvious innovation.

The victories selected represent a diverse array of wins, which a press release announcing the Top 10 list says is due to “the differing objectives of IP litigation today.” These victories range from multimillion-dollar jury verdicts, including the biggest patent award ever, which was won by Johnson & Johnson’s Centocor Ortho Biotech unit against Abbott Laboratories, to the i4i injunction win blocking the distribution of Microsoft Word editions having a popular XML feature.

What’s $175,641,661 among friends?  Apparently not much, at least insofar as news media are concerned, although it is admittedly unfair to use the word “friends” in the same sentence as $175,641,661.  In reality, it is hard to characterize Abbott Laboratories as being a “friend” of who they must pay that exorbitant sum to, but I guess is does certainly pale…