Numerous past Legal Pulse posts have focused on what Washington Legal Foundation feels is a misguided federal crusade against settlements of generic vs. branded patent suits where the exchange of money makes the generic drug available to consumers sooner than if the litigation had continued. Cynically labeled “pay-for-delay” settlements by some politicians, plaintiffs’ lawyers, and Federal Trade Commission regulators, these agreements have repeatedly been upheld as lawful in federal court. Not finding success in this country, U.S. opponents were holding out hope that a European Commission investigation of these transactions would bear fruit.
Upon ending of a case involving one specific patent settlement, the Commission’s competition policy officials noted that only a few “problematic” deals had occurred recently and that such settlements were on the decline. This directly echoes what White & Case partner Eric Grannon said at a WLF Web Seminar program last month with regards to the number of such settlements.
Separately, this week, WLF filed an amicus brief supporting dismissal of one of the few remaining legal challenges to reverse payment settlements in the U.S., In re K-Dur Antitrust Litigation, in the U.S. Court of Appeals for the Third Circuit. WLF’s brief explained why patent settlements where something of value flows from the branded to the generic company are a lawful byproduct of the system Congress created for the creation of generic drugs.