Blood Pressure Is Up at Abbott: Ninth Circuit Revives Kaiser Antitrust Suit
By Ben Hallman
January 26, 2009
Six years ago Kaiser Foundation Health Plan, Inc., one of the nation's largest health maintenance organizations, sued Abbott Laboratories for blocking generic drug makers from putting out a cheaper version of Abbott's widely used hypertension drug, Hytrin. After a jury verdict exonerating Abbott in one federal district court and a summary judgment ruling for Abbott in another, it seemed like Kaiser's case was dead in the water. But earlier this month it was revived by the Ninth Circuit Court of Appeals, which breathed life into Kaiser's claim that Abbott deceived the Patent and Trademark Office to obtain one of the patents on Hytrin.This case is a bit of a jurisdictional challenge, but here's what happened. The multidistrict litigation panel transferred several Hytrin cases to federal district court in Florida. The Florida judge certified a claim by Kaiser that Abbott and Geneva Pharmaceuticals conspired to keep a generic version of Hytrin off the market, and sent that case back to Los Angeles federal district court for trial. The jury found for Abbott.
Meanwhile, the Florida MDL judge granted Abbott's summary judgment motion on the PTO claim, finding that Kaiser had not presented sufficient factual evidence that Abbott had deceived the patent office.
Kaiser appealed both the jury verdict and the summary judgment ruling to the Ninth Circuit. The appellate panel (which included our new friend Judge Kozinski!) upheld the jury verdict, but found that Kaiser had presented enough circumstantial evidence for a jury to conclude that an in-house lawyer for Abbott had purposely left out an English translation of a Japanese patent that was substantively similar to the one Abbott used to prolong its lock on Hytrin. The case now returns to trial court in Los Angeles, where the basic question of whether Abbott provide fraudulent information to obtain its patent will be decided.
How high are the stakes? Scott Simmer, a Blank Rome partner who is representing Kaiser, told us that if not for the allegedly fraudulent patent, Kaiser would have been able to buy a generic version of Hytrin as early as 1996. Instead, it wasn't until 2000 that a generic version became commercially available. Simmer said he couldn't quantify the delay's cost to Kaiser, but considering that the HMO has 8.5 million members and the generic drug cost 60 cents less per pill than the name brand, we're guessing it was a lot.
David Frederick of Kellogg, Huber, Hansen, Todd & Figel argued the appeal for Kaiser. Representing Abbott in the case is a plethora of lawyers, including Rohit Singla, Stuart Senator, and Jeffrey Weinberger at Munger, Tolles & Olson; Bryan Merryman and Robert Milne at White & Case; and Paul Olszowka at Wildman, Harrold, Allen & Dixon.
