Supreme Court Hears Arguments In "FTC v. Actavis"

On March 25, 2013, the Supreme Court heard oral arguments in Federal Trade Commission v. Actavis, a case involving a circuit split regarding "pay for delay" settlements within the pharmaceutical industry. Justice Alito previously recused himself from the case.

The Supreme Court seeks to resolve a split among the circuits as to whether a brand name drug manufacturer acts illegally by paying a competing generic drug manufacturer to stay out of the market for a specified number of years. The Eleventh Circuit favors a "scope-of-the-patent" rule in analyzing pay for delay settlements, while the Third Circuit has suggested that a "quick look" rule is the better option.

During oral arguments, several of the justices seemed skeptical that a special rule should be adopted for analyzing reverse payment agreements. At the same time, the Supreme Court also appeared concerned about the effect pay for delay settlements have on consumers. Because the Supreme Court is ruling on