Should Pharmaceutical Product Hopping Be Subject to Antitrust Scrutiny?

On September 15, 2014, the New York State Attorney General filed a lawsuit against a brand pharmaceutical manufacturer alleging anticompetitive “product hopping.” The suit alleged that when defendant Actavis executed a “forced switch” of the market for its blockbuster Alzheimer’s drug, Namenda IR, to impel patients to purchase a new version, it engaged in product hopping and violated the Sherman Act. However, whether product hopping—selling a new drug having minor differences from an existing drug to stymie generic competitors—should be subject to antitrust liability is hotly contested. In this article, I present a set of factors that a court could use to determine whether product hopping conduct is indeed exclusionary under § 2 of the Sherman Act. *Ph.D., 2002, Duke University; J.D., 2015, Stanford Law School. This article is based on research conducted while Dr. Vikram Iyengar was a J.D. candidate at Stanford Law School. The author thanks Professor Mark Lemley and Professor Phil Malone of Stanford Law for their helpful comments on this article. The author also thanks Professor Hank Greely of Stanford Law and Professor Peter Menell of Berkeley Law for introducing him to the IP and Biosciences research area. Finally, the author is indebted to Mike Sacksteder, Lynn Pasahow, Jake Handy, Michael Shuster, Bob Hulse, and Jed Wakefield of Fenwick & West for their insights into Life Sciences IP. The views and opinions expressed in this article are solely those of the author and do not represent in any way the views and opinions of Fenwick & West. Furthermore, assumptions made within the analysis are not reflective of the position of Fenwick & West. 664 Pharmaceutical Product Hopping JPTOS