Introduction In FTC v. Watson Pharmaceuticals, Inc. (“Watson”),  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,  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
The US Court of Appeals for the Eleventh Circuit reaffirms that the "scope of the patent" test is the proper standard for antitrust review of reverse payment settlements among pharmaceutical companies (Solvay / Watson / Paddock)
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