* Drug at issue is AndroGel
* FTC sued four drug makers in "pay for delay" case
* Agency has had mixed success in fighting delay deals
By Diane Bartz
WASHINGTON, Oct 4 The Federal Trade Commission
asked the Supreme Court on Thursday to take up its fight against
deals between brand-name drug companies and generic firms which
they say delay the production of cheaper medicines.
The U.S. solicitor general filed an appeal on behalf of the
agency asking the high court to hear the FTC's fight with
Solvay, now owned by Abbott Laboratories, and three
The companies had made a deal, sometimes called a "reverse
payment," that the FTC said meant higher prices for AndroGel, a
testosterone cream used by men with low testosterone.
"The anticompetitive potential of reverse-payment agreements
-- which are estimated to cost consumers billions of dollars
annually -- is sufficiently clear that they should be treated as
presumptively unlawful," the FTC said in its court filing.
The case began in 2003, when Solvay, which makes AndroGel,
filed a lawsuit accusing generic rivals Watson Pharmaceuticals
Inc, Paddock Laboratories Inc and later Par
Pharmaceutical Cos Inc of infringing on its patents for the
The companies settled in 2006. Solvay agreed to share some
of its AndroGel profits with the generic companies through 2015.
In return, they agreed to keep their own versions of AndroGel
off the market and to help manufacture and promote the
The FTC sued both the brand-name and generic companies in
2009, arguing that the deal violated antitrust law. The agency
lost in district court and also lost on appeal.
The FTC has fought such deals for more than 10 years, with
mixed success. The agency has pushed for legislation to ban the
patent settlements or make it easier for the FTC to challenge
Telephone calls to the four drug companies seeking comment
were not immediately returned.
The Supreme Court case is Federal Trade Commission v. Watson
Pharmaceuticals, Inc., No. 12-416.