It is a well-established and universally accepted principle of
competition law that a payment by one competitor to another
competitor not to enter a market is anticompetitive, and in
Australia since 2010 a criminal offence. In the United States (US)
over the past decade, drug companies, the Federal Trade Commission
(FTC) and class action applicants have battled the question of
whether this established principle of competition law applies in
the context of a settlement of a patent dispute. The
answer is now clearly and unequivocally yes.
Recent decisions of the US Supreme Court and the Director
General (DG) of competition in the European Union (EU) have
confirmed that reverse payments in patent settlements are subject
to competition law and are potentially anticompetitive. If the
Australian Federal Court were to follow these two clear decisions
then a reverse payment could constitute criminal cartel conduct
under the Competition & Consumer Act (CCA), in
addition to
