Reverse Payment Settlements In Pharma Industry: Revisited

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Law360, New York (August 16, 2012, 1:02 PM ET) -- In December 2011, I wrote that despite a number of losses in different federal courts of appeal, the Federal Trade Commission continued to advocate for a rule that would make so called “reverse payment” settlements between branded and generic pharmaceutical companies presumptively unlawful.

I also pointed out that in pharmaceutical cases, courts have not tended to use either of the traditional antitrust tests (“per se” or the “rule of reason”), instead adopting a “scope of the patent” test to review competition issues raised by patent settlements challenged under the antitrust laws. [1]

Now, a pair of recent decisions, one from the U.S. Court of Appeals for the Third Circuit in its K-Dur decision[2], and one from the Eleventh Circuit in its Androgel decision [3], has caused commentators to declare a circuit split that may finally cause the U.S. Supreme Court to take interest in this issue, despite having denied certiorari several times.

[1] David Leichtman, Scrutinizing Reverse-Payment Settlements, Law 360, Dec. 16, 2011.
[2] In re K-Dur Antitrust Litigation, Appeal Nos. 10-2077, 2078, 2079 and 4571 (3d Cir. July 16, 2012) (“K-Dur”).
[3] FTC v. Watson Pharmaceuticals, Inc. et al., Appeal No. 10-12729 (11th Cir. April 25, 2012) (“Androgel”).

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Reverse Payment Settlements in Pharma Industry: Revisited

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