Third Circuit: Product hopping not per se illegal

“Product hopping” occurs when a drug maker creates a new version of their drug. The drug maker “hops” from one version (a 75mg tablet) to a new version (a 150mg tablet). The changes are not usually related to the efficacy of the drug. Perhaps the new version has to be taken less often.

But the hop can complicate generic substitutions. A generic (cheaper) drug must be shown bioequivalent to receive fast approval and allow pharmacists to make substitutions. The alleged goal of many product hops is to complicate the ability of generics to compete.

Does product hopping violate antitrust laws? Not without good evidence of monopoly power.

In a Sept. 28, 2016 decision the Third Circuit concluded there was insufficient evidence that the makers of Doryx acne medication had sufficient market power to support a claim for antitrust.

Takeaway: product hopping isn’t per se illegal and won’t necessarily be analyzed any differently from other alleged antitrust violations. Indeed the Third Circuit echoed concerns by the District Court that product hopping allegations could discourage routine innovation:

The prospect of costly and uncertain litigation every time a company reformulates a brand-name drug would likely increase costs and discourage manufacturers from seeking to improve existing drugs.


Don’t Click Links in Emails, John Podesta Edition

The news today thinks it knows how John Podesta, Hillary Clinton’s campaign chairperson, got badly hacked.

John gets an email. It’s allegedly from It tells him that “someone” from the Ukraine tried to login to his Gmail account, and he should change his password.

John’s IT person inexplicably says the email is legit and that he should change his password immediately. John apparently clicks the provided link and gives his Gmail password away.

Red flags that the email is not legit:

  • The subject is *Sоmeоne has your passwоrd*. Hmm… odd phrasing. Odd-looking o‘s.
  • The change password link is to a address. (Don’t go there.)

Do not click links in emails. Especially do not click links in odd emails or on links behind link shortening services.

I don’t really blame Mr. Podesta. We expect too much of users regarding computer security. But still. This is avoidable.