Scrutinizing Reverse-Payment Settlements

Law360, New York (December 16, 2011, 3:09 PM EST) -- Settlements of Hatch-Waxman litigation between branded and generic pharmaceutical companies that include a “reverse payment” by the branded firm to the generic have been the subject of significant antitrust litigation over the past several years.

Courts have not tended to use either a “per se” or “rule of reason” analysis, instead adopting a “scope of the patent” test to review such settlements.

This approach takes into account the particularized regulatory and patent enforcement framework under the Hatch-Waxman Act that governs both the relationship between branded and...
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