With the Supreme Court ruling on Obama Care, much of the business world is focused on healthcare. In honor of that attention, we decided to devote several issues this summer to the big three antitrust issues in healthcare.
The first issue is reverse payments, a perennial thorn-in-the-side for the FTC. For those who don’t know Cajun cooking, a turducken is a dish in which a chicken is stuffed inside a duck which, in turn, is stuffed inside a turkey, with each bird separated by a layer of stuffing. The use of the term by the Eleventh Circuit in the recently decided Androgel case reflects the Court’s frustration with the FTC’s arguments. We take a look at why the problem with this element of the Hatch Waxman act is causing the FTC, as one of our authors describes, to imitate Don Quixote’s perpetual tilting at windmills.
The Turducken Case Androgel and Reverse Payments
The task is formidable, but this is no place for over-simplification. John P. Bigelow (Princeton Economics Group)
Don’t assume that either the litigation or legislative setbacks spell the end of the FTC’s efforts. Anne Layne-Farrar (Compass Lexecon)
Are reverse payment settlements an acceptable competitive limitation under long-standing patent law principles or are they a contrived bottleneck that should be considered presumptively unlawful? C. Kyle Musgrove & Richard Ripley (Haynes and Boone)
This is where the FTC’s reasoning begins to go astray, because courts have found generally that reverse payment arrangements reduce the delay in generic entry. Kevin E. Noonan (McDonnell Boehnen Hulbert & Berghoff)
Eleventh Circuit Rejects the Strength of a Patent as a Criterion for the Legality of Reverse-Payment Settlements
In effect, the FTC argued that courts should weigh the strength of the patent…William Rooney & Jodi Lucena-Pichardo (Willkie Farr & Gallagher)
Federal Trade Commission Suffers Another Setback in Its Campaign to End Pharmaceutical Reverse-Settlement Agreements
Pharmaceutical manufacturers have grown emboldened by their success in defending reverse-settlement payments in the courts. Aidan Synnott & William Michael (Paul, Weiss, Rifkind, Wharton & Garrison)