About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

14 Duke L. & Tech. Rev. 1 (2015-2016)

handle is hein.journals/dltr14 and id is 1 raw text is: THE FTC HAS A DOG IN THE PATENT MONOPOLY FIGHT: WILL ANTITRUST'S BITE KILL GENERIC CHALLENGES? JENNIFER D. CIELUCHT ABSTRACT Antitrust laws have been notoriously lenient in the patent realm, the underlying reason being thatpatents'grant ofexclusion create monopolies that defy antitrust laws in order to incentivize innovation. Thus, antitrust violations have rarely been found in the patent cases. But after the Supreme Court's holding in FTC v. Actavis, brand name pharmaceutical companies may need to be more cautious when settling Hatch-Waxman litigation with potential patent infringers. Both brand-name drug manufacturers and generic drug manufacturers have incentives to settle cases by having the brand-name pay the generic in exchange for delaying their entry into the market. While courts usually found that these reverse-payment settlements did not violate antitrust laws, the Supreme Court recently held that they sometimes can, even if the settlement's anticompetitive effects fall within the scope of the exclusionary potential of the patent. The Court tried to take the middle ground after rejecting several bright line rules promulgated by appellate courts, including the Third Circuit's quick look presumption against reverse payment settlements and the Second, Eleventh, and Federal Circuit's scope of the patent test. This note finds that the Supreme Court's ruling will make the Hatch- Waxman legal landscape murky and, therefore, difficult for district courts to rule on the legality ofreverse-payment settlements in the future. The ruling may hinder generics from challenging brand- name manufacturers, a result that would certainly contravene the principle purpose behind the Hatch Waxman Act. INTRODUCTION The battle between antitrust and patent affects everyone, though it is not readily apparent. Take the regular drug store visit to pick up a t Duke University School of Law, J.D. candidate, 2015; Rice University, B.S. in Bioengineering, 2009. I gratefully acknowledge the comments and guidance of Professor Arti Rai throughout the development of this student note without suggesting that Professor Rai agrees with the statements made in this note. All mistakes are my own.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most