In stark contrast to recent decisions by other circuits, the
Third Circuit holds that patent law does not insulate patent
settlements from antitrust scrutiny.
On July 16, the U.S. Court of Appeals for the Third Circuit
reversed a lower court's dismissal of a private antitrust
challenge to a patent settlement agreement between Schering-Plough
Corporation (Schering) and two generic competitors. In re K-Dur
Antitrust Litig., Nos. 10-2077, 10-2078, 10-2079, 10-4571 (3d
Cir. July 16, 2012), available here. The decision, while premised on a private
suit, comes on the heelsof a series of defeats for the Federal
Trade Commission (FTC) involving challenges to so-called
"reverse payment settlements" or "pay-for-delay
settlements" in the pharmaceutical industry. The Third Circuit
rejected the notion that the settlement should be reviewed within
the "scope of the patent" and instead upheld the view
championed by the FTC that "any payment from a patent holder
to a generic patent
