Antitrust -- 2018

Pfizer Inc. v. Rite Aid   (U.S. Supreme Court)

Antitrust scrutiny for pharmaceutical reverse payments

The NAM filed an amicus brief in the U.S. Supreme Court urging it to review a lower court decision accusing Pfizer of making an illegal reverse payment to keep a generic version of the cholesterol drug Lipitor off the market. Antitrust scrutiny should apply only to “large” and “unjustified” reverse payments made to a patent challenger in an effort to persuade the challenger to stay out of the market, and the lower court's decision extended antitrust scrutiny to “commonplace” and “traditional” settlements by focusing on just one aspect of the agreement. The ability of the pharmaceutical companies to efficiently settle disputes is highly beneficial to the public, and speculative antitrust challenges will needlessly chill such settlements. The NAM's brief urged the Supreme Court to provide greater guidance on what qualifies as an impermissible reverse payment and what facts plaintiffs must include in a complaint to plausibly allege anticompetitive conduct in order to subject a pharmaceutical patent settlement to antitrust scrutiny. Providing such direction would be helpful to manufacturers so that they can protect their intellectual property rights in ways consistent with the antitrust laws and avoid improper antitrust challenges to their patent settlements.The U.S. Supreme Court issued a brief order declining to review.

Related Documents:
amicus brief  (December 22, 2017)


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