FTC Spoke, Kaleo and Impax Listened: Orange Book Patent Delistings Begin
December 14, 2023, 1:06 PM
By: Ross E. Blau
As discussed last month, the FTC sent letters to 10 pharmaceutical companies, asserting that their listing of over 100 patents in FDA’s Orange Book for a variety of products was improper. Shortly thereafter, the FTC began using the administrative process with FDA to challenge these patent listings, and all of the companies had until December 16, 2023 to respond.
It appears that prior to this deadline at least two companies – Impax Labs and Kaleo, Inc. – may have felt pressure to reconsider their patent listings.
Specifically, Impax delisted both of its patents directed to Adrenaclick, the same patents that the FTC had noticed in its November 7, 2023 letter. There are currently no approved generic applicants for Adrenaclick, and no additional patents directed to Adrenaclick in the Orange Book. Similarly, Kaleo delisted eight patents directed to AUVI-Q, the same patents that the FTC had noticed in its letter to Kaleo. Given that the Orange Book lists more than twenty patents for AUVI-Q, it seems that any potential generic applicant still has quite the battle ahead.
It will be interesting to continue to monitor for any further patent delistings, particularly with the December 16, 2023 deadline coming up. Time will tell whether the FTC will take any further action against those companies that don’t follow Kaleo and Impax’s paths. And, it remains to be seen whether we can expect further fallout in private litigation from FTC’s recent, more aggressive actions in this area.
To subscribe to our publications, click here.
Tags
News & Insights
News & Insights
American Bar Association 2025 Asia-Pacific Conference
Speaking Engagement
Antitrust
NBA Commercial Law Section 38th Annual Corporate Counsel Conference
Sponsorship
Antitrust
GCR Live: Law Leaders Global 2025
Speaking Engagement
Antitrust
SABA North America Corporate Counsel Retreat 2025
Sponsorship
Antitrust
Forecasting Health Care Antitrust Under a Second Trump Administration
Podcast
Antitrust
GCR 100 2025 Ranks Axinn Antitrust Group in Top Categories
Awards & Recognitions
Antitrust
What Trump’s FTC Picks Mean for Bio-Pharma Dealmaking and PBMs
Media Mentions
Antitrust
Capitol Forum Health Care Competition Conference 2024
Speaking Engagement
Antitrust
Ethical Considerations for Cybersecurity, IP Transactions and Avoiding USPTO Sanctions (EIP241212)
Speaking Engagement
Intellectual Property
Albertsons Ends Merger Deal, Accuses Kroger of ‘Self-Serving Conduct’
Media Mentions
Antitrust