[Ip-health] Pharmalot: Glaxo Accused Of Monopolizing Wellbutrin Market

[Malini Aisola]

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Glaxo Accused Of Monopolizing Wellbutrin Market
May 8, 2008
Ed Silverman

http://www.pharmalot.com/2008/05/glaxo-accused-of-monopolizing-wellbutrin-markit/

A federal judge has certified a class action antitrust suit that accuses
Glaxo of using monopolistic tactics to boost profits of its Wellbutrin
antidepressant, by delaying a generic version from coming to market, The
Legal Intelligencer reports.

The suit was brought by direct purchasers who claim Glaxo devised a
scheme to keep Wellbutrin prices high by making fraudulent assertions to
the US Patent and Trademark Office and by engaging in "sham" patent
litigation against generic drugmakers, the paper writes.

According to the suit, the plan worked because the patent litigation
delayed the market entry of generic versions of Wellbutrin, and the
direct purchasers were forced to pay unnecessarily high prices for the
drug, because no generic versions of bupropion were available for nearly
two years after Glaxo's patent monopoly would have expired, according to
the paper.

In their motion for class certification, the plaintiffs seek to certify
the case on behalf of direct purchasers who bought the 100 mg or 150 mg
dosage of Wellbutrin directly from Glaxo between January 24, 2002 - the
date on which the suit says generic entry would have occurred had Glaxo
not engaged in allegedly anticompetitive conduct - and June 30, 2006,
the date on which prices allegedly stabilized at competitive levels.

Glaxo lawyers argued in their own brief that when a brand-name drug
faces no competition from generic equivalents, it is usually sold to the
three major national drug wholesalers who purchase the majority of the
product for resale to other parties in the distribution chain, the paper
writes.

When a generic drug enters the market, the defense team argued, it
generally hurts the national wholesalers because generic manufacturers
often sell directly to the other parties in the distribution chain,
bypassing the national wholesalers, according to the Intelligencer.

As a result of "generic bypass," Glaxo lawyers argued, a conflict exists
among members of the proposed class of direct purchasers because
national wholesalers benefit from anticompetitive activity that prevents
generic entry, allowing them to retain higher sales, whereas other
direct purchasers are harmed by the same anticompetitive activity in the
form of higher prices, the paper writes.

But US District Court Judge Bruce Kauffman found the defense argument
was premised on a 2003 decision from the 11th U.S. Circuit Court of
Appeals that has been rejected by other courts. The court said the
putative class in Valley Drug vs. Geneva Pharmaceuticals, which included
the three major national wholesalers and other direct purchasers, likely
had differing interests because the national wholesalers may have
benefited from the alleged anticompetitive activity, the paper writes.

But Kauffman refused to follow Valley Drug, saying Glaxo's defense
failed to convince him that a true conflict exists in the Wellbutrin
purchaser class. "Even assuming that the national wholesalers in this
case were harmed by the introduction of generic drugs, generic versions
of Wellbutrin...have been on the market since 2004. Therefore, the
national wholesalers are no longer reaping the alleged benefits of
delayed generic entry, and their interests are not 'harmed' by recovery
of any illegal overcharge," Kauffman wrote.

"Indeed, any economic benefits the wholesalers experienced in the past
are legally irrelevant because the overcharge itself - not any economic
effect of the overcharge - is the proper measure of recovery in this
antitrust case," Kauffman wrote, according to the Intelligencer.


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Malini Aisola

Knowledge Ecology International

1621 Connecticut Ave., NW, Washington, DC 20009 USA

Tel.:  +1.202.332.2670 Fax: +1.202.332.2673