Lawyers at Munger, Tolles & Olson; Skadden, Arps, Slate, Meagher & Flom; and White & Case scored another victory on Friday in long-running litigation over a so-called pay-for-delay deal involving the testosterone replacement gel AndroGel. U.S. District Judge Thomas Thrash Jr. in Atlanta granted defense motions for summary judgment, rejecting arguments by AndroGel purchasers that a 2003 patent settlement between Watson Pharmaceuticals Inc., Paddock Laboratories Inc., Par Pharmaceuticals Companies Inc., and Solvay Pharmaceuticals Inc. was based on “sham” litigation.
Solvay, which began marketing AndroGel in June 2000, was issued a patent for the gel in January 2003, according to court records. After Watson and Paddock Laboratories (in partnership with Par) began developing generic version of the gel, a Solvay subsidiary filed a patent infringement suit in August 2003 to block the generics. The parties reached a settlement the same year, which included “reverse payments” from Solvay and an agreement by its rivals to promote AndroGel and to forgo plans for a generic version until at least August 2015. The Federal Trade Commission and class action lawyers filed antitrust claims against all four pharmaceutical companies in 2009, claiming that the 2003 deal was anticompetitive and that the underlying patent litigation was a sham.
The plaintiffs had argued that Solvay’s patent for the drug was was facially invalid and that Watson and Paddock could have easily defeated the company’s infringement claims. But Thrash ruled Friday that the litigation was not “objectively baseless,” concluding that Solvay might have made a plausible case for infringement and that its rivals had cause to settle.
“We are pleased with the decision and believe Judge Thrash got the law and the facts right in granting summary judgment here,” said Skadden’s Steven Sunshine, who represents Watson. Munger Tolles partner Jeffrey Weinberger, who represents Solvay, argued for the defendants. Paddock and Par Pharmaceuticals are represented by Eric Grannon of White & Case.
We named the trio of defense lawyers Litigators of the Week back in April, after the U.S. Court of Appeals for the Eleventh Circuit upheld an earlier summary judgment ruling in the case. That decision rejected antitrust claims by the FTC and private plaintiffs over the terms of the 2003 settlement.
The plaintiffs are represented by Berger & Montague and a gaggle of class action firms. Lawyers for the plaintiffs didn’t immediately respond to requests for comment.