Exclusive: Temodar's "Inequitable" Monopoly: New Federal Antitrust "Triple Damages" Suit Against Merck

The below is a rarely-appearing but still-predictable "next-step" -- in the "do-se-do dance" that began with Delaware federal District Court Judge Sue Robinson's finding in the Temodar^® patent litigation (on January 26, 2010) that New Merck (or more precisely, actually, legacy Schering-Plough) had engaged in "inequitable conduct", and/or laches -- in attempting to extend the life of the Temodar '291 patent through a series of bad faith delays at, and half-truths told to the United States Patent Office. [The small image -- at right, is clickable -- enlarge, to see some of the gist of the complaint.]

Due to the fact that the able Judge has ruled the conduct surrounding the '291 patent was, in part, inequitable, another set of lawyers, and plaintiffs, have now emerged to assert that -- as long-suffering purchasers of Temodar (at allegedly inflated monopolistic prices) -- these plaintiffs, as wholesale pharmacies are entitled to treble damages from New Merck for willful violations of Sections 1 and 2 of the Sherman Act. The plaintiffs seek class-action status for all US Temodar purchasers.

That's a clever application -- of the unusual set of facts found by Judge Robinson -- to the plain language of that 120 year old statute. The full plaintiffs' complaint is here, as a 41 page PDF file. The name of the case is Louisiana Wholesale Drug Co. v. Merck, et al. (Case No. 10-183, US Dist. Ct., Dist. of Del., Complaint filed March 5, 2010).

Triple damages -- on the difference between an assumed generic price, and Temodar's branded drug price -- on all US sales of Temodar, after September 2009 (and perhaps much earlier) is. . . well, a big number. It certainly runs eight or nine digits.

I'll keep you posted.