The Wall Street Journal has an excellent editorial today (here, subscription required), “The ‘Pay for Delay’ Rap,” which addresses some of the concerns we’ve voiced regularly here at The Legal Pulse (and echoed in a recent WLF Legal Opinion Letter) with the Federal Trade Commission’s campaign to eradicate certain branded-generic drug patent litigation settlements and the tactics FTC has utilized in one particular patent settlement investigation.
While noting that “not all reverse settlements are in the consumer interest,” the Journal points out that when the FTC’s position has been tested in court, judges have repeatedly ruled for the settling drug companies. Faced with such losses, “[FTC Chairman] Mr. Leibowitz has taken the unusual step of directly lobbying Congress to ban reverse settlements.” The Journal‘s opinion of such a remedy:
[E]liminating reverse settlements will reduce the incentive to challenge patents at all. If the only choice is an expensive litigation death match that lasts for years, fewer generic companies will sue under the probability that they will themselves face patent infringement suits.
The editorial also pointedly questions FTC’s conduct during its effort to subpoena Watson Pharmaceuticals CEO Paul Bisaro (more details on this here):
It’s one thing for the commission to litigate pay-for-delay cases, even dodgy ones, but quite another to actively attempt to broker deals in the drug business.