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14 Duke L. & Tech. Rev. 1 (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.

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