A decision by the U.S. Second Circuit Court of Appeal’s not to reconsider its original decision on the practice of pharmaceutical companies switching patients from one form of a drug to another as a means to preclude generic market entry was hailed as good news by those opposed to that practice.

The terms “forced-switching” or “product-hopping” are used to describe what happens when pharmaceutical companies attempt to switch consumers to a patented variant of their own product in an attempt to prevent or delay a generic alternative from gaining market entry.

The Second Circuit on August 7 denied a petition by Actavis (now Allergan) and Forest Laboratories to rehear the appeal of a preliminary injunction. That injunction, sought by the Office of the New York Attorney General against Actavis, required Forest to continue to distribute Namenda, an immediate-release tablet Alzheimer’s drug, rather than substitute it with their own extended-release tablet.

The effect of the Second Circuit not to review its original ruling was viewed by some legal experts as a positive development that could lend credence to the practice of “product-hopping” being a viable cause of action for future antitrust claims.

But Stephen Kastenberg, an antitrust partner at Ballard Spahr, said that “it would be difficult, if not impossible, to read any additional precedential weight into the original Namenda panels’ decision based on the denial of rehearing.”

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