Drug Patent Suits' Novel Theory Tests False Claims Act Limits

By Benjamin Greenblum, Arthur Argall and Patrick Bradley (January 20, 2022, 5:47 PM EST) -- A string of unusual False Claims Act actions could set the federal courts of appeals on a collision course and create risks for patent holders beyond Congress' contemplation.

A single relator, Zachary Silbersher, has brought three qui tam cases pursuing the novel theory that pharmaceutical companies defrauded the government by charging Medicare and Medicaid inflated drug prices based on invalid patents that improperly stalled generic competition.

How did this relator learn of the deficiencies that allegedly made these patents invalid? Not as a company insider, as in the paradigmatic FCA case, but through information disclosed in federal patent proceedings, including inter partes...

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