The US Court of Appeals for the Third Circuit recognizes that a product hopping in the face of a “patent cliff” can constitute conduct in violation of the antitrust laws (Mayne / Warner Chilcott / Mylan)

The Third Circuit’s recent product-hopping decision in Mylan Pharm. Inc. v. Warner Chilcott Pub. Ltd. Co (“Doryx”) [1] has been widely criticized by commentators as breaking with established antitrust precedent. Mylan, the last remaining plaintiff in the case following a series of settlements at the district court level, has petitioned for rehearing, which both the Federal Trade Commission (“FTC”) and American Antitrust Institute (“AAI”) agree is warranted in light of potential harm to consumers. Regardless of whether en banc review is granted, the Doryx opinion recognized that product hopping in the face of a “patent cliff” can constitute conduct in violation of the antitrust laws.Id. at 41 n. 89. A “patent cliff” occurs when the patents protecting the exclusivity of a branded drug