Kyle Musgrove, Richard Ripley, Sep 30, 2013
Three months now have passed following the Supreme Court’s decision inFTC v. Actavis, 133 S. Ct. 2223 (2013), which subjects to “rule of reason” antitrust scrutiny certain pharmaceutical patent settlements involving a cash payment by the branded drug company to the generic drug company. With the benefit of time and hindsight we can say two things are certain: First, litigants and courts are struggling to construct a framework to implement the Court’s holding. Second, the narrow parameters of Actavis invite continued attacks on pharmaceutical patent settlements where value other than cash payments is exchanged.
These two developments create a level of uncertainty that will forestall the objectives of the Hatch-Waxman Act and, derivatively, impact and delay competition in the pharmaceutical industry until resolved.
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