Antitrust Law Daily Apotex, Senju Pharmaceutical settle generic pay-for-delay action
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Wednesday, May 25, 2016

Apotex, Senju Pharmaceutical settle generic pay-for-delay action

By Greg Hammond, J.D.

The federal district court in Wilmington, Delaware, has dismissed with prejudice a pay-for-delay suit concerning the low-cost generic drug gatifloxacin ophthalmic. Plaintiffs Apotex, Inc. and Apotex Corp. reached a settlement agreement with Senju Pharmaceutical Co., Ltd., according to the stipulated order of dismissal (Apotex, Inc. v. Senju Pharmaceutical Co., Ltd., May 24, 2016).

Kyorin Pharmaceutical Co. developed Zymar® and Zymaxid®—gatifloxacin ophthalmic formulations used to treat bacterial infections of the eye. Kyorin subsequently entered into a license agreement with Senju Pharmaceutical Co. that allowed Senju to develop and market liquid ophthalmic formulations of gatifloxacin. Senju filed patent applications naming itself as the only inventor.

After generic drug manufacturer Apotex, Inc. filed its Abbreviated New Drug Applications (ANDAs) for generic versions of branded Zymar and Zymaxid, Senju and Kyorin initiated several patent infringement actions. Apotex subsequently filed its own action, alleging that the patent infringement suits were shams and asserted violations of Section 2 of the Sherman Act. In particular, Apotex claimed that Senju used the related proceedings and other alleged anticompetitive conduct to unlawfully delay and frustrate Apotex’s entry into the market for gatifloxacin ophthalmic solutions, thereby denying consumers access to its low-cost generic gatifloxacin ophthalmic product.

Although the court dismissed all claims and counterclaims brought by Apotex and Senju, the claims that Apotex asserted against the nonsettling defendants, including Kyorin and Allergan Inc., remain.

The case is No. 1:12-cv-00196-SLR.

Attorneys: Stephen B. Brauerman (Bayard, P.A.) for Senju Pharmaceutical Co., Ltd. Francis J. Murphy (Murphy & Landon) for Apotex Inc. and Apotex Corp. Benjamin J. Schladweiler (Ross Aronstam & Moritz LLP) and Eric P. Stephens (Jones Day) for Kyorin Pharmaceutical Co. Ltd. Ashley E. Johnson (Gibson, Dunn & Crutcher LLP) and Jack B. Blumenfeld (Morris, Nichols, Arsht & Tunnell LLP) for Allergan Inc.

Companies: Apotex, Inc.; Apotex Corp.; Senju Pharmaceutical Co., Ltd.; Kyorin Pharmaceutical Co., Ltd.; Allergan, Inc.

MainStory: TopStory Antitrust DelawareNews

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