Provigil bottle

The Federal Trade Commission announced yesterday that it has filed a lawsuit against Cephalon for paying off four generic drug companies not to bring a generic version of its sleepiness drug, Provigil to market. As the FTC’s press release says:

The Federal Trade Commission today filed a complaint in federal district court against Cephalon, Inc., a pharmaceutical company based in Frazer, Pennsylvania, for a course of anticompetitive conduct that is preventing competition to its branded drug Provigil. The conduct includes paying four firms to refrain from selling generic versions of Provigil until 2012. Cephalon’s anticompetitive scheme, the FTC states, denies patients access to lower-cost, generic versions of Provigil and forces consumers and other purchasers to pay hundreds of millions of dollars a year more for Provigil.

According to the Commission’s complaint, filed in the U.S. District Court for the District of Columbia, Cephalon entered into agreements with four generic drug manufacturers that each planned to sell a generic version of Provigil. Each of these companies had challenged the only remaining patent covering Provigil, one relating to the size of particles used in the product. The complaint charges that Cephalon was able to induce each of the generic companies to abandon its patent challenge and agree to refrain from selling a generic version of Provigil until 2012 by agreeing to pay the companies a total amount in excess of $200 million. In so doing, Cephalon achieved a result that assertion of its patent rights alone could not.

What’s somewhat surprising about the FTC’s case is that it is coming now, as opposed to earlier. There have been private class actions against Cephalon for this alleged scheme for several years. PAL member AFSCME District Council 37 Health & Security Plan is a plaintiff in the main class action concerning this. A consolidated class action complaint was filed in that case, In re Modafinil Antitrust Litigation, in October 2006, over 16 months ago. To read more about that class action, go here. If you are a patient who has taken Provigil and wants to be kept updated about the class action, fill out this form and note that you are interested in the Provigil case.

Here’s the FTC’s complaint. Here’s the class action complaint.