The US FTC brings a lawsuit in the pharmaceutical sector for monopolization based on patent litigation (AndroGel II)

The Federal Trade Commission has brought its first suit alleging anticompetitive conduct in connection with the prosecution and settlement of pharmaceutical patent litigation since the Supreme Court’s June 2013 decision in FTC v. Actavis. Although two commissioners dissented from the decision to issue the complaint (Ohlhausen and Wright), the action reveals that the Commission’s interest in scrutinizing settlements between innovator pharmaceutical companies and generic companies remains high. In particular, this action appears to signal an expansion of the Commission’s enforcement to settlements involving non-cash consideration as “payment” for delayed entry under Actavis and a strategy to couple that challenge with an allegation of sham litigation. ANDROGEL I (AKA ACTAVIS) In June 2013,