The Need for Clarification on Product Hopping: Open Questions after Namenda and Doryx
Intellectual Property Committee, ABA Section of Antitrust Law, July 2017
15 Pages Posted: 17 Jul 2017
Date Written: July 7, 2017
Several tensions exist between the Second Circuit’s decision in Namenda and the Third Circuit’s decision in Doryx, leaving unanswered a number of questions about product hopping. This paper examines those tensions and potential consequences of failing to reconcile them. Part I defines product hopping and explains some of the ways it can be manifested. Part II provides an overview of the regulatory environment in which product hopping occurs. Part III summarizes the Namenda and Doryx opinions. Part IV examines the tensions between those opinions and discusses some of the open questions about product hopping left for the antitrust bar to decipher. Part V concludes.
Keywords: antitrust, product hopping, competition, Doryx, Namenda, Mylan
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