Mylan Pharmaceuticals, Inc. v. Warner Chilcott plc, et al.

Brief of the Federal Trade Commission urging the Third Circuit to reverse the district court’s summary judgment ruling, which held (1) that a brand-name drug manufacturer lacked monopoly power and (2) that product hopping almost never constitutes exclusionary conduct in any event. The district court’s analysis of the threshold monopoly-power question foundered on a basic misunderstanding of the special characteristics of the pharmaceutical marketplace. In addition, product hopping can be exclusionary if, without countervailing procompetitive justifications, a monopolist raises rivals’ costs by depriving them of their most efficient distribution mechanisms and thus harms consumers by impeding the rivals’ competitive ability to discipline monopoly prices.