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FTC’s Last Stand On Pay-For-Delay Deals? Supreme Court To Make Call On Legality

Executive Summary

The high court will determine whether brand-generic reverse payments to settle patent disputes are presumptively anticompetitive and unlawful when it takes up FTC v. Actavis; a ruling affirming the lower court would enable companies to enter agreements without the threat of litigation.

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Compromise On “Pay For Delay”? Supreme Court Hunts for Middle Ground

During Supreme Court oral arguments in the AndroGel pay-for-delay case, the government and drug manufacturers each pushed for a one-size-fits-all antitrust interpretation of brand-generic reverse payment settlements. But the most likely outcome will probably fall somewhere in the middle: allowing the deals to continue, but with additional scrutiny to ensure they are not anticompetitive.

Supreme Court May Leave Brand-Generic Settlements Open To Further Litigation

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.

Brand-Generic Settlements Face Tough Questions At Supreme Court As “Rule Of Reason” Analysis Finds Support

During oral arguments in FTC v. Actavis several justices were critical of the “scope of the patent” test advocated by pharma that presumes reverse settlements are lawful; they questioned the ability of generic companies to be paid more than they would get if they won the patent suit.

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