by Kevin McDonald, Mark Lentz
Washington Legal Foundation
February 21, 2013
The In Re K-Dur Antitrust Litigation, declared settlements of pharmaceutical patent litigation under the Hatch-Waxman Act presumptively anticompetitive if they include “reverse payments” to the generic patent challenger. K-Dur’s limitation of its rule to reverse payments makes little sense—but that is because K-Dur’s rule itself makes no sense: it would render cash settlements unlawful, while ignoring the only important question, i.e., whether the allegedly excluded generic competition would have been legal. The Supreme Court stands poised to decide the issue by June when it reviews FTC v. Watson Pharmaceuticals, Inc. It will determine whether the K-Dur “presumptive illegality” or the majority “scope of the patent” rule is correct. In doing so, the Court should note the FTC’s concession that its position abides no limiting principle: according to the Commission, all settlements that convey value—which means all of them—are presumptively illegal.



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