Andrx v Elan: The Eleventh Circuit applies its Schering-Plough v FTC decision

摘要

In Andrx Pharmaceuticals, Inc v Elan Corp, 421 F.3d 1227 (11th Cir. 2005), the US Court of Appeals for the Eleventh Circuit ('the Eleventh Circuit') ruled that Andrx could not maintain an antitrust claim against Elan based solely on Elan's initiation of a patent infringement lawsuit against Andrx. The Eleventh Circuit reasoned that the lawsuit was not a 'sham litigation' and thus was protected under the Noerr-Pennington doctrine. The Eleventh Circuit, however, also found that Andrx had sufficiently pleaded a basis for an antitrust claim under the Sherman Act based on Elan's settlement and licensing agreement with another pharmaceutical company, SkyePharma.