On March 6, 2017, Wilson Sonsini Goodrich & Rosati obtained a victory for client Amphastar Pharmaceuticals at the U.S. Court of Appeals for the First Circuit when the court revived an antitrust suit against Momenta Pharmaceuticals and Sandoz that was previously dismissed by the U.S. District Court for the District of Massachusetts. Momenta and Sandoz compete with Amphastar in the market for generic enoxaparin, an important anticoagulant drug. Amphastar alleged that Momenta and Sandoz misled a standards-setting organization (SSO) known as the U.S. Pharmacopeial Convention (USP) and its members—in the course of the USP's adoption of a chemistry standard for enoxaparin—into adopting a method for testing to show compliance with the standard over which Momenta and Sandoz had a pending patent application by failing to disclose their application. Once the method became the standard and other competitors like Amphastar had to use the approved method, Momenta and Sandoz sued, claiming patent infringement. In Amphastar's case, Momenta and Sandoz secured a temporary restraining order and preliminary injunction that blocked Amphastar for several months before it was dissolved. Amphastar claimed that this conduct violated the Sherman Act by giving Momenta and Sandoz an improper monopoly over the market for generic enoxaparin.

The defendants had argued that Amphastar's suit could not proceed because its damages all flow from the patent litigation, and the patent litigation enjoyed Noerr-Pennington immunity. The district court granted the motion to dismiss on Noerr-Pennington grounds, and Amphastar brought an appeal to the First Circuit that the Federal Trade Commission participated in as amicus in support of reversal. The First Circuit reversed, holding that, "The mere existence of a lawsuit does not retroactively immunize prior anti-competitive conduct." The court went on to observe, "In essence, the mere fact that the defendants brought protected patent litigation against Amphastar does not immunize them from liability for the full amount of damages caused by their alleged antitrust violation. Significantly, the antitrust violation need not be the 'sole cause' of Amphastar's injury, so long as it was a 'material cause.'" The court therefore held that the Noerr-Pennington doctrine does not bar Amphastar's claims, and it remanded the case for further consideration by the district court. The ruling represents an important precedent on Noerr-Pennington and SSO manipulation issues.

The WSGR team representing Amphastar in the matter includes partners Chul Pak, Jon Jacobson, and Seth Silber; Of Counsel Jeff Bank; and associates Daniel Weick and Elyse Dorsey.

For more information, please refer to the court's opinion.