“Product Hopping” on Both Sides of the Pond: A Survey of U.S. and EU Case Law

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Michael Frese, Ingrid Vandenborre, Julia York, Nov 24, 2014

In recent years, courts in both the United States and the European Union have increasingly been asked to consider under what circumstances the introduction of a new pharmaceutical drug product harms, rather than benefits, competition in contravention of the antitrust and competition laws. In the European Union, antitrust regulators have been active in challenging so-called “evergreening” where a brand-name company seeks to ensure continued revenues based on an “extended life” for a branded drug on the basis of a new formulation, with  the switch to the new formulation being accomplished through conduct that affirmatively harms potential generic challengers. These practices have been challenged in the European Union as both single-firm and collusive conduct.

In the United States, three courts have substantively considered the same question, evaluating so-called “product hopping” conduct under single-firm monopolization precedent. In addition, the U.S. Federal Trade Commission has also weighed in with a proposed legal standard for evaluating “product hopping,” but has not yet brought a case under that standard. Given that several “product hopping” cases are currently pending on both sides of the Atlantic, additional decisions will be forthcoming soon.