Reverse payment patent settlement
Reverse payment patent settlements, also known as "pay-for-delay" agreements,[1] are a kind of an agreement that settles patent infringement litigation, in which the company that has brought the suit agrees to pay the company it sued; these agreements are striking because when such litigation is settled, the alleged infringer usually pays the patent holder in any settlement agreement.[2][3]
Reverse payment patent settlements result from a peculiarity in US regulatory law arising from the Hatch-Waxman Act passed in 1984; the law encourages patent infringement litigation with incentives outside the patent system.[4] Under the Act, the first generic company to successfully challenge the patents of the innovative company, and that has its Abbreviated New Drug Application (ANDA) accepted by the FDA, is awarded with 6 months of exclusivity; during that time that FDA is not allowed to approve any other companies' ANDA, and so only the originator company and the winning generics company can market the drug, and the price that the generic company can charge is much higher than it eventually will be when other generic companies are allowed to sell the drug as well.[4][5] In settling the litigation, the generics company can calculate the income it would get due to that 6 month administrative exclusivity, and the innovator can calculate the amount of money it would lose from sales to the generic company, and the parties might agree that a cash payment from the innovator to the generic company is an arrangement in which both parties benefit more than they would if the litigation continues.[4][6]
The settlements have been criticized as anti-competitive and thus violating United States antitrust law, and contrary to the public interest, principally because they frustrate the purpose of the Hatch-Waxman Act, which was to increase competition and incentive the entry of generic drugs.[6][7]
The first ruling by the US Supreme Court in relation to reverse payment settlements came in 2013, in which the Court ruled that the "Federal Trade Commission can sue pharmaceutical companies for potential antitrust violations" in the face of such settlements.[8][9] Following that case, which involved Solvay Pharmaceutical's drug AndroGel and a reverse payment settlement between Solvay and Actavis, the number of academic papers about reverse payment patent settlement greatly increased.[10]
References
- ↑ "Merck to SCOTUS: Hatch-Waxman is to blame for pay-for-delay deals". Thomson Reuters News & Insight. Retrieved 29 September 2012.
- ↑ Dennis Crouch (January 10, 2011). "Reverse Payment Settlements Return to the Supreme Court". Patently-O.
- ↑ "Supreme Court may decide whether "reverse payment" settlements violate antitrust law". Inside Counsel. August 15, 2012.
- 1 2 3 "RL32377: The Hatch-Waxman Act: Legislative Changes in the 108th Congress Affecting Pharmaceutical Patents" (PDF). Congressional Research Service. April 30, 2004.
- ↑ Boehm, Garth; Yao, Lixin; Han, Liang; Zheng, Qiang (September 2013). "Development of the generic drug industry in the US after the Hatch-Waxman Act of 1984". Acta Pharmaceutica Sinica B. 3 (5): 297–311. doi:10.1016/j.apsb.2013.07.004.
- 1 2 Wang, Zhenghui (July 2014). "Reanalyzing Reverse-Payment Settlements: A Solution to the Patentee 's Dilemma". Cornell Law Review. 99 (5): 1227–1258.
- ↑ Mark Lemley; et al. "Amicus Brief of 86 Law Professors" (PDF). Retrieved 29 September 2012.
- ↑ Wyatt, Edward (17 June 2013). "Supreme Court Lets Regulators Sue Over Generic Drug Deals". New York Times. Retrieved 9 May 2015.
- ↑ Federal Trade Commission v. Actavis, Inc., et al., 570 (U.S. 17 June 2013).
- ↑ Schrepel, Thibault (3 February 2014). "Reverse payment settlement: statistical comparison between cases and research papers". Le Concurrentialiste (blog). Retrieved 8 May 2015 – via WordPress.
