Case Detail

In re Loestrin 24 FE Antitrust Litigation
On February 22, 2016, a federal appeals court reinstated a suit in which FTC asserts that exacting antitrust scrutiny applies to virtually any agreement between a brand-name drug company and a generic company to settle patent litigation. The decision was a setback for WLF, which filed a brief urging affirmance of the suit’s dismissal. The Supreme Court ruled in 2013 that a patent settlement that includes a large cash payment to a generic triggers antitrust scrutiny because it may indicate that the brand-name company is, in effect, paying a competitor to stay out of the market. FTC seeks to expand that holding dramatically; it argues that scrutiny is mandated whenever a settlement provides a benefit to the generic, even a benefit consisting solely of a patent license. Although the appeals court reinstated the suit, it did not endorse FTC’s position. It simply held that antitrust scrutiny is not limited to cash payments, and deferred deciding whether patent licenses are covered.
Case Status:
Partial loss.
More Information and Downloads:
8/27/2015: Download the Brief

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