In Ethypharm SA France v. Abbott Laboratories, the Third Circuit held that because Ethypharm chose to license its anti-cholesterol drug Antara for U.S. distribution, rather than entering the US market itself, the plaintiff lacked standing to sue Abbott Laboratories for conspiring to keep Ethypharm’s drug off the market.
Ethypharm alleged that Abbott agreed with Reliant Pharmaceuticals, the U.S. distributor for Antara, that restrained competition by protecting the market position of Abbott’s anti-cholesterol drug TriCor. Because Ethypharm did not itself seek U.S. Food and Drug Administration approval for Antara, it cannot sell the drug in the U.S. and thus cannot compete with Abbott. Ethypharm’s licensee Reliant is the only company authorized to compete in the U.S. market with Antara.
“Ethypharm wants to have it both ways,” the panel opinion read. “It wants to pass on to a licensee the expense and risk of qualifying to compete in the United States pharmaceutical market, but, when that arrangement fails to achieve success, Ethypharm seeks to avail itself of the United States laws protecting fair competition.” The Third Circuit concluded that such a firm lacked antitrust standing.