July 20, 2015
In Re K-Dur Antitrust Litigation: Pharmaceutical Reverse Payment Settlements Go Beyond the “Scope of the Patent”
Reverse payment settlements occur in patent infringement suits by innovative drug manufacturers against potential generic manufacturers under the Hatch-Waxman Act, where the innovator pays the generic and the latter agrees to delay market entry. Three circuit courts have endorsed such settlements under the “scope of the patent” (“SOP”) test. In In re K-Dur Antitrust Litigation, the Third Circuit rejected the SOP test, holding that reverse payment settlements are presumptively illegal. Reverse payment settlements typically involve monopoly sharing and warrant antitrust scrutiny. K-Dur’s presumptive illegality approach, as compared to the extremely deferential SOP test, the over-inclusive per se approach, or the prohibitively complex full “rule of reason” analysis, is the best practicable judicial approach. Congress and the federal agencies should implement policies to enhance public interest in both a fair competitive market and innovative drug development.
Seiko F. Okada, In Re K-Dur Antitrust Litigation: Pharmaceutical Reverse Payment Settlements Go Beyond the “Scope of the Patent”, 14 N.C. J.L. & Tech. 303 (2012), available at http://ncjolt.org/wp-content/uploads/2013/01/15_Okada_Final.pdf.
The North Carolina Journal of Law & Technology has adopted the Open Access Program, a part of the Scholar’s Copyright Project created by Science Commons. Authors designate the conditions under which their articles are licensed. By downloading articles, you agree to comply with the license terms specified. Click here to see a copy of our Publication Agreement. Please contact NC JOLT at firstname.lastname@example.org with permissions inquiries.