Southern District of New York Judge P. Kevin Castel dismissed a class action complaint against the sellers of Prilosec for failure to allege a plausible relevant product market. American Sales Co. Inc.’s proposed class action alleges AstraZeneca AB and The Procter & Gamble Co. initiated sham patent suits in order to perpetuate an unlawful monopoly over Prilosec OTC. The complaint asserts the defendants filed such litigation in order to trigger the automatic exclusivity provision of the Hatch Waxman Act and block the generic products from coming to market.
In ruling on the motion to dismiss, the court found that it insufficiently alleged that Prilosec had no acceptable substitute. Judge Castel ruled the complaint’s few allegations about the characteristics of Prilosec OTC made no attempt to distinguish the drug from potential competitor products. American Sales was not prohibited from amending the complaint.