Citing the dire consequences for companies seeking to comply with antitrust law in the wake of a direct circuit split, major pharmaceutical makers are asking the Supreme Court to review a Third Circuit decision that declared settlement payments by brand-name pharmaceutical companies to their generic rivals to be anticompetitive. Merck & Co., Inc. recently filed a petition for a writ of certiorari [1], and all eyes in the pharmaceutical industry are watching to see whether the Supreme Court will agree to hear the case. The Third Circuit in July ruled that reverse payment agreements — the so-called “pay-for-delay” settlements in which brand-name pharmaceutical companies pay generic rivals to drop patent challenges, thereby preserving exclusivity in the market — presumptively violate
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The US Court of Appeals for the Third Circuit rejects the “scope of the patent” test in favor of a quick look rule of reason analysis when reviewing reverse payment settlements between patent holders and potential generic competitors in the pharmaceutical industry (Schering-Plough)
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