The Federal Trade Commission is hoping to test the Supreme Court’s pay-for-delay ruling over Effexor patent settlements. To do so, the FTC has filed an amicus brief in an antitrust case that pitted retailers against the drug’s manufacturer, Wyeth, and generic manufacturer, TEVA. It is meant to be used as a means of challenging the settlement that the companies made.
The one foreseeable problem with the FTC’s plan is that the agency has been stiffed by this court in the past. For example, last year the agency sent a similar brief to the court that Judge Joel Pisano refused to accept. The only difference this time is that the high court is ruling on FTC v. Actavis, which “allowed that some ‘reverse payment’ patent settlements could be illegal.” In the Effexor case, the FTC is looking to test whether money has to actually be paid out in order for a patent settlement to be anti-competitive.
In this case, the plaintiffs have claimed Wyeth (the makers of brand name Effexor) induced generic drug maker Teva to halt the launch of the generic version of the drug by making a promise that it would not sell its own generic version for at least 6 months. This would grant Teva the exclusive rights to sell generic Effexor for 180 days. Both companies maintain that their agreement doesn’t equal a reverse payment because there was no actual cash involved. The FTC does not agree and is seeking to look into that as an antitrust violation, which would make the agreement illegal.
Effexor is a blockbuster antidepressant medication that is used to treat severe depression and anxiety. Drugs like Effexor are linked to increased episodes of violent and suicidal thoughts and behavior as well as birth defects in babies born to mothers who take Effexor while pregnant. Some of the birth defects linked to Effexor use include PPHN, spina bifida, neural tube defects and heart, lung and brain defects.
