We have written previously on numerous developments concerning reverse payments in Hatch-Waxman litigation settlements (i.e., payments made by branded pharmaceutical patent holders to generic challengers to postpone market entry of proposed generic products).
Earlier this month, we reported that Merck & Co. had filed a petition for a Writ of Certiorari seeking to challenge the Third Circuit’s decision in In re K-Dur Antitrust Litig. holding that reverse payments are prima facie evidence of an antitrust violation.
It now appears the Federal Trade Commission (“FTC”) will follow suit and file its own petition for Certiorari in FTC v. Watson Pharmaceuticals, Inc., No. 10-12729, where the Eleventh Circuit upheld reverse payments — finding no antitrust violation in settlements involving generic Androgel. Indeed, FTC Chairman Jon Leibowitz, speaking last week at Fordham’s 39th Annual Conference on International Antitrust Law and Policy, suggested the likelihood that FDA will file such petition with the High Court on or before the October 16, 2012 deadline. Challenges to the conflicting Third and Eleventh Circuit decisions will virtually assure Supreme Court review of the antitrust implications of reverse payments.
Gibbons will continue to track the status of this potential petition and other developments relating to reverse payments including the Supreme Court’s likely grants of Certiorari. Stay tuned for more on these important developments.
Charles H. Chevalier is an Associate in the Gibbons Intellectual Property Department.