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Reverse Payment Settlements Suffer Reversal Of Fortune At Third Circuit

This article was originally published in The Pink Sheet Daily

Executive Summary

FTC ends its losing streak on patent settlement suits as the Third Circuit says “rule of reason” rather than “scope of patent” analysis should be applied to brand/generic settlements; appeals court reinstates suit by direct purchasers challenging Schering’s payments to Upsher-Smith and ESI Lederle.

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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.

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

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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