Is Any Consideration a “Payment”? The Continuing Struggle over How to Interpret FTC v. Actavis
Bloomberg BNA has published “Is Any Consideration a ‘Payment’? The Continuing Struggle over How to Interpret FTC v. Actavis,” written by Antitrust Partner Laura Shores and Complex Commercial Litigation Counsel Karin Garvey.
The article assesses the effects of the US Supreme Court decision regarding “reverse payment” settlements in branded-generic drug manufacturer patent litigation. The authors note that with little guidance in the initial decision issued slightly more than a year ago, lower courts are grappling with the threshold question, and, predictably, have reached different conclusions.
“A clear resolution is unlikely until the Supreme Court revisits the issue,” the authors conclude. “Until then, parties settling pharmaceutical patent litigation should be prepared for challenges to any settlement that involves more than an agreement on a generic entry date before patent expiration.”
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