The Upjohn Manufacturing Company and the Upjohn Company v. Richard S. Schweiker, Secretary

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 for this drug under the name “Motrin.” This drug is prescribed for relief of osteoarthritis, rheumatoid arthritis and mild to moderate…