Getting To A Rule For Reverse Payments

Law360, New York (June 28, 2012, 1:24 PM EDT) -- For a decade now, courts have been grappling with whether so-called “reverse payments” by pioneer pharmaceutical manufacturers to generic competitors in settlement of patent infringement litigation violate the antitrust laws, and with how the competitive effects of reverse-payment settlements should be analyzed. The year 2003 saw a spate of opinions on reverse-payment settlements by circuit courts, the Federal Trade Commission, and noted antitrust scholar Judge Richard Posner (sitting by designation in federal district court).[1] 

These opinions ranged from the Sixth Circuit’s per se invalidation of such settlements as payments to competitors in consideration for unlawful agreements not to compete, notwithstanding the...

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