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The U.S. Court of Appeals for Third Circuit Offers Misguided Analysis of Product Hopping

e-Competitions Bulletin, No. 81744, October 2016

6 Pages Posted: 31 Oct 2016  

Michael A. Carrier

Rutgers Law School

Date Written: October 27, 2016

Abstract

Brand-name drug firms sometimes switch from one version of a drug to another to delay generic entry. In a case involving the acne-treating antibiotic Doryx, the Third Circuit failed to sufficiently appreciate the anticompetitive concerns with such “product hopping.”

The court misapplied the law relating to monopoly power and exclusionary conduct, resulting in questionable rulings on the regulatory framework, foreclosure law, and other issues. The court also created a conflict with previous Third Circuit cases and the only other appellate product-hopping decision, the Second Circuit's Namenda decision.

In short, the Third Circuit’s Doryx decision raises significant concerns.

Keywords: Product Hopping, Drugs, Pharmaceuticals, Antitrust, Patent, Regulation, Doryx, Mylan, Warner Chilcott

JEL Classification: I18, K21, L40, L41, L43, L65, O34, O38

Suggested Citation

Carrier, Michael A., The U.S. Court of Appeals for Third Circuit Offers Misguided Analysis of Product Hopping (October 27, 2016). e-Competitions Bulletin, No. 81744, October 2016. Available at SSRN: https://ssrn.com/abstract=2860281

Michael A. Carrier (Contact Author)

Rutgers Law School ( email )

217 North Fifth Street
Camden, NJ 08102-1203
United States
856-225-6380 (Phone)
856-225-6516 (Fax)

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