On April 13, 2021, the Fifth Circuit affirmed an FTC ruling that condemned as anticompetitive an agreement between a brand-name drug company and a generic drug company to settle patent-infringement litigation. The decision was a setback for WLF, which argued that the FTC decision dramatically expanded antitrust law and would make it almost impossible for litigants to settle drug-patent disputes. The Supreme Court ruled in 2013 that a patent litigation settlement that includes a large payment to a generic drug company receives antitrust scrutiny because it suggests that the brand-name company is unreasonably restraining trade by paying a potential competitor to stay out of the market. Here, the Fifth Circuit held that the FTC’s rule-of-reason analysis was supported by substantial evidence that “Impax could have obtained the proffered benefits by settling without a reverse payment for delayed entry—which is a practical, less restrictive alternative.”
Documents:
