Case Summary
In 2006, Ovation Pharmaceuticals, manufacturer of Indocin, a drug used in the treatment of patent ductus arteriosus, a congenital heart defect usually found in severely underweight premature babies, purchased the rights to the drug NeoProfen, a drug about to receive FDA approval for the treatment of the same condition which effects approximately 30,000 babies per year in the United States. After its FDA approval, Ovation released its NeoProfen treatment, charging similar prices. According to the Commission’s complaint, Ovation’s acquisition was intended to maintain its monopoly in the market for this treatment, and the Commission sought divestiture of assets related to one of the two treatments, and also disgorgement of all unlawfully obtained profits from the sale of these two treatments. In August 2010, the district court dismissed the complaint, finding that the two drugs were in separate product markets. The Commission, along with the State of Minnesota, has appealed the court’s ruling to the Eighth Circuit. On August 19, 2011 the Eighth Circuit affirmed the district court's decision. FTC and Minnesota filed a petition for rehearing en banc on October 3, 2011, and the petition was denied. The FTC closed its investigation.