FTC v Actavis, Inc: When is the Rule of Reason Not the Rule of Reason?

15 Minnesota Journal of Law, Science and Technology, 2013, Forthcoming

Minnesota Legal Studies Research Paper No. 13-20

9 Pages Posted: 20 Jun 2013  

Thomas F. Cotter

University of Minnesota Law School

Date Written: June 18, 2013

Abstract

The U.S. Supreme Court’s recent decision in FTC v. Actavis, Inc. brings some resolution to the decade-long dispute over the level of antitrust scrutiny that is appropriate for evaluating the legality of "reverse-payment" or "pay-for-delay" agreements settling pharmaceutical patent infringement litigation between brand-name and generic drug companies. Writing for a 5-3 majority in Actavis, Justice Breyer rejected both the scope-of-the-patent test and the presumptive illegality approach, and held instead that courts should review reverse-payment settlements under the rule of reason. Or say the opinion states. In reality, the Court appears to have all but in name adopted the presumptive illegality approach it purported to reject. One might speculate about the political or prudential considerations that went into the majority’s characterization of what it was actually doing, but as I read the opinion reverse-payment settlements of the type at issue in Actavis are now subject to a de facto regime of presumptive illegality. In my view, this is a welcome result.

Keywords: Antitrust, Patents, Pay for Delay, Reverse Payments

Suggested Citation

Cotter, Thomas F., FTC v Actavis, Inc: When is the Rule of Reason Not the Rule of Reason? (June 18, 2013). 15 Minnesota Journal of Law, Science and Technology, 2013, Forthcoming; Minnesota Legal Studies Research Paper No. 13-20. Available at SSRN: https://ssrn.com/abstract=2281291

Thomas F. Cotter (Contact Author)

University of Minnesota Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States
612-624-7527 (Phone)

Paper statistics

Downloads
383
Rank
60,050
Abstract Views
1,836