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.
Now, a pair of recent decisions, one from the U.S. Court of Appeals for the Third Circuit in its K-Dur decision, and one from the Eleventh Circuit in its Androgel decision 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.
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Reverse Payment Settlements in Pharma Industry: Revisited
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