When Does Interpretation Become Rewriting? The FTC Runs With the Actavis Decision

Kent Bernard, Sep 30, 2013

A Hatch-Waxman settlement case finally reached the Supreme Court, and when it did the Court in FTC v. Actavis rejected both (a) the settling parties’ view that any settlement within the scope of the patent at issue and not the result of sham litigation was legal (the “scope of the patent” test); and (b) the FTC’s view that any settlement which involved a transfer of any money or asset from the patent owner to the challenger was presumptively illegal (the “presumptive illegality” test). The Court held that such settlements were subject to inquiry, and that certain of them could constitute antitrust violations under the rule of reason standard.

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