The US Court of Appeals for the Eleventh Circuit holds that a reverse payment agreement between a brand name pharmaceutical company and a potential competitor is to be analyzed under the "scope of the patent" test to determine antitrust liability (Abbott / Geneva / Zenith)

Pavlik, Anna M.

Previous article The US Court of Appeals holds that the reverse payment settlement between a branded and generic pharma companies did not violate the antitrust laws because the exclusionary effect of the agreement did not exceed the "scope of the patent" (Schering-Plough) Next article The US Court of Appeals holds that if the terms of pay for delay settlements between the brand name and generic pharma companies are within the "scope of the patent" antitrust law is not implicated (Abbott / Geneva / Zenith)

15 Sep 2003

The US Court of Appeals for the Eleventh Circuit holds that a reverse payment agreement between a brand name pharmaceutical company and a potential competitor is to be analyzed under the "scope of the patent" test to determine antitrust liability (Abbott / Geneva / Zenith)

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Reference

US Court of Appeals, Eleventh Circuit, Abbott / Geneva / Zenith, Judgment No. 02-12091, 15 September 2003

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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Author

Anna M. Pavlik
United First Partners (New York)

United States 11 contributions 6953 visits

Quotation

Anna M. Pavlik, The US Court of Appeals for the Eleventh Circuit holds that a reverse payment agreement between a brand name pharmaceutical company and a potential competitor is to be analyzed under the "scope of the patent" test to determine antitrust liability (Abbott / Geneva / Zenith), 15 September 2003, e-Competitions Pay-for-delay agreements, Art. N° 57431

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