UPJOHN MFG. CO. v. SCHWEIKER

No. 81-1517.

681 F.2d 480 (1982)

The UPJOHN MANUFACTURING COMPANY and The Upjohn Company, Plaintiffs-Appellants, v. Richard S. SCHWEIKER, Secretary, et al., Defendants-Appellees.

United States Court of Appeals, Sixth Circuit.

Decided June 29, 1982.

As Amended July 23, 1982.


Attorney(s) appearing for the Case

James G. Vantine, Jr., Brown, Colman & DeMent, Kalamazoo, Mich., Gerard Thomas, The Upjohn Company, Kalamazoo, Mich., Richard F. Kingham, Washington, D. C., for plaintiffs-appellants.

Robert C. Greene, U. S. Atty., Grand Rapids, Mich., Gerald C. Kell, Consumer Affairs Section Antitrust Division Dept. of Justice, Washington, D. C., Norman Bristol, Howard & Howard, Kalamazoo, Mich., Stanley L. Temko, Herbert Dym, Covington & Burling, Washington, D. C., Jeffrey B. Springer, Acting Chief Counsel, Jeffrey N. Gibbs, Rockville, Md., Robert B. Nicholson, James H. Laskey, Dept. of Justice, Washington, D. C., James Johnstone, Washington, D. C., Robert Pugh, Sr., Shreveport, for defendants-appellees.

Before EDWARDS, Chief Judge, CONTIE, Circuit Judge, and PHILLIPS, Senior Circuit Judge.


PHILLIPS, Senior Circuit Judge.

This appeal grew out of Food and Drug Administration (FDA) approval of a new drug application filed by a competitor of appellants Upjohn, Boots Pharmaceuticals, Inc. (Boots). In the new drug application, Boots sought permission to manufacture and distribute the drug ibuprofen under the trademark, "Rufen."

FDA had approved a new drug application submitted by Upjohn for ibuprofen in 1974. Upjohn had developed a substantial market...

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