The U.S. Supreme Court in FTC v. Actavis found that when a pharmaceutical company settles a patent infringement suit under Paragraph IV of the Hatch Waxman Act with a prospective generic manufacturer, the settlement may violate the antitrust laws where it involves a large and unjustified payment to the alleged infringer. Since 2013, courts have worked to define what constitutes such a reverse payment while considering the strength of the patent and the merits of the underlying patent litigation. In June 2020, in In re Humira Antitrust Litigation (19-CV-1873, N.D. Il June 8, 2020), the District Court granted a motion to dismiss a reverse payment claim based upon a global settlement that provided for earlier entry in European markets. The case is on appeal, in part to consider if the Court erred in its application of Actavis.
The ABA-IPL Antitrust / Interface Committee hosted a discussion that addressed the issues raised on appeal and the development of reverse payment law. The event was co-sponsored by the ABA Section of Intellectual Property Law and the ABA Antitrust Law Section. The featured panelists were Julia K. York, Partner, Antitrust/Competition Skadden, Arps, Slate, Meagher & Flom, Tim Kamal-Grayson, Staff Attorney, Health Care Division, Bureau of Competition, Federal Trade Commission, and Sean Iyer, Executive Vice President, Compass Lexecon.