The U.S. Court of Appeals for the 11th Circuit reaffirms that the “scope of the patent” test is the proper standard of antitrust review of the reverse payment settlements among pharmaceutical companies (Solvay / Watson / Paddock)

Introduction In FTC v. Watson Pharmaceuticals, Inc. (“Watson”), [1] the Eleventh Circuit reaffirmed its long line of precedents and held that, absent sham litigation or fraud in obtaining the patent, the “scope of the patent” test should be used to evaluate antitrust challenges to the reverse payment settlements between a brand-name and a generic pharmaceutical manufacturers. The court reiterated that neither the per se rule nor the traditional rule of reason antitrust standards of review were appropriate for cases involving patent disputes. Instead, the court applied the three-part test, first set-forth in the Valley Drugcase, [2] which requires analysis of: (1) the scope of the exclusionary potential of the patent; (2) the extent to which an agreement exceeds that scope; and (3) the

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Anna M. Pavlik, The U.S. Court of Appeals for the 11th Circuit reaffirms that the “scope of the patent” test is the proper standard of antitrust review of the reverse payment settlements among pharmaceutical companies (Solvay / Watson / Paddock), 25 April 2012, e-Competitions Bulletin Competition in the Pharmaceutical sector, Art. N° 54761

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