Antitrust Risks In Settling Patent Cases: The FTC And Congress Continue The Attack, While The Courts Continue To Be Unimpressed

On three consecutive days this month, new shots were fired in the ongoing battle over so-called "reverse payment" patent settlements in cases brought under the federal statute governing the introduction of generic pharmaceuticals.

• On February 2, 2009, the FTC filed a complaint in California federal court attacking as anticompetitive the settlement of a patent infringement claim involving AndroGel, a testosterone replacement drug. The FTC alleged that the patent holder had made reverse payments (disguised as a "co-promotion" arrangement) for the generic company's agreement to stay out of the market.
• On February 3, Senators Kohl, Grassley, Feingold, Durbin, and Brown echoed their support of the FTC by reintroducing a bill (which had languished in the last Congress) declaring all patent settlements under the Hatch-Waxman Act that contain reverse payments to be per se illegal under the antitrust laws.