The Humira Patent Thicket and the Noerr-Pennington Doctrine

Abstract

Humira (adalimumab) is among the best-selling drugs in the United States and around the world. Even though the core patent for Humira expired in 2016, the manufacturer, AbbVie, has continued to increase the price to consumers year-after-year, so that the 2019 average yearly retail price was $84,454. Another 7.5% price increase is expected in the near future. AbbVie’s conduct to promote the rising price of Humira was recently challenged in In Re: Humira® (Adalimumab) Antitrust Litigation, No. 19-cv-1873. In March 2019, a group of indirect payers for Humira (labor unions and health and welfare funds) filed a novel lawsuit in the U.S. District Court for the Northern District of Illinois alleging antitrust activity on the part of AbbVie in violation of Sections 1 and 2 of the Sherman Antitrust Act. The antitrust challenge, which was dismissed by the District Court on the basis of the Noerr-Pennington doctrine, is predicated on AbbVie’s patent thicket that surrounds Humira and on legal settlements it has reached with six biosimilar companies to keep them out of the market until 2023. This article examines In Re Humira and provides a legal rationale for the conclusion that the District Court’s dismissal of the case should be overturned on appeal to the United States Court of Appeals for the Seventh Circuit. The case will be heard on February 25, 2021.