Pfizer Hit With Antitrust Class Action Over Celebrex

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Pfizer was hit with an antitrust class action lawsuit, alleging that it is illegally trying to protect its Celebrex patent to delay a generic version of the arthritis medication from being sold, forcing patients and insurers into having to overpay for the drug.

A federal appellate court ruled in 2008 that Pfizer’s Celebrex patent was invalid, saying that the methods it used to create celecoxib, the active ingredient in the drug, “was not patently distinct from earlier Pfizer patents . . . that already disclosed the use of celecoxib to reduce inflammation,” said plaintiff Allied Services Division Welfare Fund, a health and welfare benefit fund, which provides health and pension benefits.

Due to the decision, the court ruled that “patent exclusivity” would expire on May 30, 2014, the original expiration date for the compound patent, not the Celebrex patent.

In spite of this ruling, Pfizer allegedly went to great lengths to extend the patent for Celebrex, the Pfizer Celebrex class action lawsuit filed on Jan. 20 explains.

“First, Pfizer sought from the United States Patent and Trade Office (PTO) reissuance of the defunct method-of-use patent by claiming that its earlier applications for the patent contained unintentional ‘errors’ needing ‘correction’ in light of the Federal Circuit ruling,” the class action lawsuit says.

“This was false and Pfizer knew it,” the class action lawsuit alleges. “And for over four years — from September of 2008 until March of 2013 — Pfizer bombarded the PTO with false information, deflective arguments and voluminous irrelevant materials.”

Even though Pfizer was rejected several times, “the PTO finally succumbed to Pfizer’s onslaught of false information and trickery, and allowed the reissue patent,” the Pfizer class action lawsuit claims.

As a result of obtaining the reissued patent, in 2013 Pfizer used the fraudulently obtained reissued patent to prosecute sham litigation against would-be makers of generic Celebrex,” Allied Services explains in the class action lawsuit.

And this was allegedly done by Pfizer even though it knew the patent was reissued “by fraud” and that a court would at some point discover that the “patent had been erroneously granted and was invalid for non-obviousness double-patenting over Pfizer’s earlier celecoxib patent.”

However, this alleged “sham litigation” was not filed for the purpose of winning the lawsuits, but “to use the lawsuits to delay would-be generic makers’ entry efforts, and to have a lawsuit pending to serve as a vehicle for later settlements that would buy Pfizer additional exclusivity beyond May 2014.”

“Pfizer’s scheme worked,” Allied Serves claims in its antitrust class action lawsuit.

Pfizer allegedly filed such lawsuits against generic drug makers Teva Pharmaceuticals USA Inc., Mylan Pharmaceuticals Inc., Watson Laboratories Inc., Lupin Pharmaceuticals Inc., and Apotex Inc. in Virginia federal courts. All of these drug companies had applied for a license to sell generic celecoxib in May 2014.

Pfizer reached a settlement with Teva, saying it would not launch a generic version of Celebrex until December 2014, which is six months after the patent expiration date of May 30, 2014. Watson and Mylan hit the FDA with a lawsuit, saying that the settlement agreement should be reversed.

“As a result, purchasers of prescription drugs are now paying, and will continue to pay, supracompetitive prices for Celebrex, imposing antitrust overcharges on purchasers of many hundreds of millions of dollars even though the only valid celecoxib patents have already expired,” the Pfizer class action lawsuit explains.

By December 2014, the fourth circuit court of appeals reversed a lower federal court’s June 2014 decision that barred Mylan, Watson and Lupin from selling generic Celebrex.

Allied Services is seeking to represent a class of “all persons or entities who purchased and/or paid for some or all of the purchase price for Celebrex and/or its AB-rated generic equivalents” from “May 30, 2014 through and until the anticompetitive effects of Defendants’ unlawful conduct ceases.”

The class is for 48 of the 50 the United States, with Indiana and Ohio excluded, but including Washington, D.C. and Puerto Rico.

The plaintiffs are represented by Brielle M. Hunt of Miller Legal LLC; James R. Dugan II, Douglas R. Plymale, David B. Franco, Chad J. Primeaux and Lanson Bordelon of The Dugan Law Firm APLC; and Art Sadin of Sadin Law Firm PC.

Counsel information for Pfizer is not yet available.

The Pfizer Antitrust Class Action Lawsuit is Allied Services Division Welfare Fund v. Pfizer Inc. et al., Case No. 2:15-cv-00029, in the U.S. District Court for the Eastern District of Virginia.