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Articles

FTC vs. Actavis one year later: Uncertainty reigns

June 24, 2014

Articles

FTC vs. Actavis one year later: Uncertainty reigns

June 24, 2014

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So-called “pay for delay” patent settlements continue to roil the pharmaceutical industry.pay for delay – money rolled up with pills 200px I recently spoke on this topic at the 3rd Circuit judicial conference with panelists from the FTC, industry and outside law firms. These settlements typically arise in the context of Hatch-Waxman patent litigation. A branded drug company, defending its patent position against one or more potential generic entrants, may agree to pay a portion of the brand’s profits to a generic entrant as part of an overall settlement in which the generic entrant agrees to delay marketing its drug for some period of time of the remaining patent term. Because the payment goes from the patentee to the putative infringer, instead of the other way around as is the case in other patent litigations, these settlements are frequently known as “reverse payment” settlements. In arguing that these settlements violate the antitrust laws, the FTC has successfully employed the moniker “pay for delay” – i.e., the branded company is paying for the delayed entry of the generic. — Read more on Fish Litigation Blog

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