Clearance: Proskauer's Quarterly Antitrust Update - Winter 2013

WATSON AND REVERSE PAYMENTS: AN OPPORTUNITY TO RESOLVE THE COMPETING TENSION BETWEEN ANTITRUST AND PATENT LAW UNDER THE HATCH-WAXMAN ACT

On March 25, the Supreme Court will hear arguments in Federal Trade Commission v. Watson Pharmaceuticals, Inc.,¹ and take a step toward concluding a long-running and acrimonious dispute between the Federal Trade Commission ("FTC") and several Circuit Courts of Appeal regarding whether patent settlements under the Hatch-Waxman Act² containing "reverse payments" violate the Sherman Antitrust Act. For many years, the FTC has taken the position³ that such payments presumptively violate the Sherman Act, only to be rebuffed by the Second, Sixth, Eleventh, and Federal Circuits⁴ as well as by the Supreme Court's refusal to hear the issue until now.