A US Court of Appeals holds that reverse payment agreements between a patentee and a generic pharma manufacturers that do not exceed the scope of the patent are not illegal under the federal antitrust laws and refuses to conduct post hoc determination of patent validity (Bayer)

On April 29th, the U.S. Court of Appeals for the Second Circuit ruled that the "pay-for-delay" agreement between defendants Bayer AG and several generic drugmakers (including The Rugby Group, Watson Pharmaceuticals Inc., and Barr Laboratories Inc.) were not illegal under U.S. antitrust law and prevailing precedent. However, in a significant indication of the panel's sentiments on its opinion, it urged plaintiffs, including several trade unions and pharmacies, to request en banc review (apparently so the en banc court could do what a panel cannot, i.e., overturn prior precedent). While this suggestion was cloaked in the language of procedure (that the earlier, precedential Tamoxifen decision was based on a motion to dismiss, while here the more developed record on summary judgment

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  • McDonnell Boehnen Hulbert & Berghoff

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Kevin E. Noonan, A US Court of Appeals holds that reverse payment agreements between a patentee and a generic pharma manufacturers that do not exceed the scope of the patent are not illegal under the federal antitrust laws and refuses to conduct post hoc determination of patent validity (Bayer), 29 April 2010, e-Competitions Bulletin Competition in the Pharmaceutical sector, Art. N° 53008

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