Antitrust Law and the Right to Settle: The Case of Pay-for-Delay Settlements

forthcoming in 28 Concorrenza e Mercato 2021

19 Pages Posted: 15 Dec 2021

See all articles by Mariateresa Maggiolino

Mariateresa Maggiolino

Bocconi University - Department of Legal Studies; Ask Research Center

Date Written: December 13, 2021

Abstract

In the spring of 2021, pay-for-delay settlements took over the legal scene on the both sides of the Atlantic. In March, following the line of reasoning it had elaborated in Generics, the Court of Justice
of the European Union (CJEU) decided Lundbeck. It dismissed the appeals brought against the
homonymous decision of the European Commission (EC), which had fined a number of patent
settlements in which brand-name drug manufactures had paid generic drug producers to delay their
entry in the market of citalopram-based antidepressant medications. A few weeks later, in the US, the Court of Appeals for the Fifth Circuit decided Impax. It affirmed the decision of the Federal Trade Commission (FTC), which, in its first post-Actavis patent settlement case, had fined a generic drug producer for having accepted payments to delay the entry in the market of an opioid named
oxymorphone. Meanwhile, some House representatives introduced a new bill on pay-for-delay
settlements which has not yet passed.
At first glance, one might be tempted to place these settlements at the heart of the interface between antitrust and patent law. The aforementioned rulings – which, in the United States and the European Union are not anomalous but follow a recent case law – have instead used the case of pay-for-delay settlements to establish when antitrust law should limit firms’ right to settle.
The paper discusses such a shift in perspective.

Keywords: pay-for-delay settlements, US antitrust law, EU competition law

JEL Classification: K21

Suggested Citation

Maggiolino, Mariateresa, Antitrust Law and the Right to Settle: The Case of Pay-for-Delay Settlements (December 13, 2021). forthcoming in 28 Concorrenza e Mercato 2021, Available at SSRN: https://ssrn.com/abstract=3984228

Mariateresa Maggiolino (Contact Author)

Bocconi University - Department of Legal Studies ( email )

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Milan, Milan 20136
Italy

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