The US Court of Appeals for the 11th Circuit holds that a reverse payment agreement between a brand-name pharmaceutical company and a generic would-be competitor should be analyzed under the “scope of the patent” test to determine antitrust liability (Abbott/Geneva/Zenith)

Introduction In Valley Drug Co. v. Geneva Pharm., Inc. (“Valley Drug”), [1] the Eleventh Circuit adopted the “scope of the patent” test to evaluate validity of reverse payment agreements between a brand-name pharmaceutical manufacturer and generic would-be competitors. The court viewed the case in light of the inherent tension between the antitrust and patent laws, emphasizing the importance of taking into consideration “the effects of antitrust liability on the innovation and disclosure incentives created by the patent regime, with the aim of achieving a suitable accommodation between the differing policies.” [2] The court held that both the per se rule and the rule of reason antitrust review approaches were not appropriate for the cases involving patent disputes. These two traditional

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Anna M. Pavlik, The US Court of Appeals for the 11th Circuit holds that a reverse payment agreement between a brand-name pharmaceutical company and a generic would-be competitor should be analyzed under the “scope of the patent” test to determine antitrust liability (Abbott/Geneva/Zenith), 15 September 2003, e-Competitions Bulletin Competition in the Pharmaceutical sector, Art. N° 57431

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