“Pay-For-Delay” Fight Is Now: FTC, GPhA Spar Over Report In Prelude To Supreme Court Review
Of the 140 brand-generic patent settlements in FY 2012, 40 contained both compensation to the generic manufacturer and a restriction on generic entry; FTC announces this record number as its suit against Watson goes to Supreme Court.
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Of 145 brand-generic patent settlements in FY 2013, 29 contained both compensation to a generic manufacturer and a restriction on generic entry, down from 40 the previous year; compensation is uncertain in 10 additional deals.
Justices rule FTC can make its case in court that Solvay’s reverse payment settlement with Actavis and two other generic companies was anticompetitive; GPhA says opinion could decrease the number of patent challenges by generic manufacturers, but Actavis pledges to continue defending these deals.
During oral arguments in FTC v. Actavis, several justices were critical of the “scope of the patent” test advocated by pharma that presumes reverse-payment settlements are lawful; they questioned the ability of generic companies to be paid more than they would get if they won the patent suit.