Pay for delay agreements: An overview of EU and US Case Law

Are pay-for-delay agreements still a hot topic for competition authorities and courts? The answer, albeit reckless, is definitely “yes”. As the years go by, competition authorities still seem determined to fight these agreements, which are sometimes referred to as “patent settlements” or “reverse payment settlements”. Fundamentally, there are several reasons why competition authorities on both sides of the Atlantic remain vigilant. In the United States, the Actavis decision of the Supreme Court [1], handed down in 2013, did not finally prohibit pharmaceutical companies from concluding pay-for-delay agreements. Strictly speaking, the decision only established that such deals may have anticompetitive effects. By rejecting the per se rule and by adopting the rule of reason, the Supreme