IN RE: WELLBUTRIN XL ANTITRUST LITIGATION, Indirect Purchaser Class, Appellants in 15-2875, Aetna Health of California Inc.; IBEW-NECA Local 505 Health and Welfare Plan; Bricklayers and Masons Union Local Union No. 5 Ohio Health and Welfare Fund; Mechanical Contractors-United Association Local 119 Health and Welfare Plan; Painters District Council No. 30 Health and Welfare Fund; Plumbers and Pipefitters Local 572 Health and Welfare Fund; Aetna, Inc., Appellants in 15-3559, Professional Drug Company, Inc., individually and on behalf of the Direct Purchaser Class, Appellant in 15-3591, SmithKline Beecham Corporation d/b/a GlaxoSmithKline and GlaxoSmithKline plc, Appellants in 15-3681/3682, 868 F.3d 132

Summary

HOLDINGS: [1]-The purchasers' claim that the brand name drug manufacturer engaged in sham litigation to delay the launch of a generic version of the drug was without merit because an act of infringement of its patent plainly occurred; the record indicated that the manufacturer was not aware of a patentee's plans to file a citizen petition with the FDA, that neither the manufacturer nor the patentee wanted to collaborate on a petition, that the manufacturer refused to share its data with the patentee for use in the petition, and that the manufacturer disagreed with the premise of the petition; [2]-The purchasers failed to show that the brand name drug manufacturer engaged in serial petitioning with respect to each of the four suits against the generic manufacturers and the citizen petition; the brand name drug manufacturer was only involved in two of the suits, and then only briefly.