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Richard Epstein, Mar 26, 2009
The purpose of this brief essay is to address the interconnections among three important areas of law: antitrust, patents, and FDA regulation. Each of these presents formidable difficulties in its own right. The integration of any two areas of law is always vexed. The interconnections among three different bodies of law of vital relevance to the pharmaceutical industry present a still more formidable challenge. The easiest approach starts with an outline of the antitrust, into which I shall first integrate the patent law, thereafter turning to the rules governing FDA approved drugs. In order to focus the inquiry I will talk about the TriCor litigation in which Abbott Labs was sued on three fronts: by downstream retailers, generic competitors, and state attorneys general. The three cases raise much the same substantive issues, even though each group has its own distinctive damage claim. The litigation has clear importance because TriCor generates over a billion dollars in sales each year. The stakes are high. It is worth noting that the retailer piece of the litigation was recently settled for $184 million.
