Update October 2010:The court denied GSK’s request that it reconsider its decision to allow indirect purchaser claims to move forward.
Update September 2010: Tracking his decisions in the direct purchaser case, Judge Stengel dismissed claims relating to one of GSK’s patents, but otherwise permit at least one state law claim to proceed for each of the in-direct purchaser plaintiff. The court invited the indirect purchases to seek class certification. The direct purchase plaintiffs were certified as a class in 2008.
Update September 2010: Eastern District of PA Judge Lawrence Stengel affirmed his denial of GSK’s summary judgment motions in In re: Wellbutrin Antitrust Litigation. As did the opinion described below, the court held that disputes of fact existed as to whether GSK has probable cause for patent infringement actions that delayed the entry of generic version of Wellbutrin. The court also rejected GSK’s argument that because the court had held that one of its patents was valid, that its case which included the valid patent could not constitute sham litigation. Judge Stengel explained that he had ruled separated on each patent. The reasonableness of basing the suit on one patent could not justify summary judgment for GSK if it had not ground for including the second patent.
In Meijer Inc. et al. v. Biovail Corpet al., Eastern District of PA Judge MaryA. McLaughlin, allowed an antitrust lawsuit filed by a group of direct purchasers of Wellbutrin XL against Biovail Corp. and GlaxoSmithKline PLCto proceed, despite dismissing one claim of substantive monopolization against Biovail. In their suit the plaintiffs allege that GSK and Biovail delayed the entry of generic competitors for Wellbutrin XL into the American market, by filing “meritless litigation” and a “baseless” citizen petition with the FDA. Plaintiffs claim that Biolvail’s settlement of patent infringement suitsit filed in 2004 and 2005, against four generic manufacturers of Wellbutrin who sought to market generic Wellbutrin alternatives, “highlights the sham nature of the suits”. Plaintiffsfurther allege that defendants’ anticompetitive conduct forced consumers to pay supracomeptitive prices for their products, which cost consumers $37 billion per month for four months. As part of its holding, the court upheld the claim of conspiracy to monopolize against both companies, finding that plaintiffs sufficiently pled the element of “agreement and concerted action in restraint of trade” by sufficiently alleging a product mark and geographic market and that GSK and Biovail possessed power over both markets and acted together in filing the “allegedly baseless infringement suits”. The court dismissed the substantive monopolization claim against Biovail due to Biovail’s lack of direct participation in the U.S. market for Wellbutrin, despite receiving drug sale royalties from GSK. However, the court upheld an identical claim against GSK stating that its licensing of Wellbutrin from Biovail “ensured [GSK] a monopoly on sales of Wellbutrin XL in the United States.”