Are we on the brink of another domino falling in the battle to protect patent rights? It might seem so, considering a recent Third Circuit Court of Appeals' ruling that appears to elevate commercial antitrust law above the interests of patent holders.
On July 16, 2012, in the K-Dur case, the Third Circuit Court of Appeals ruled that a "finder of fact must treat any payment from a [pharmaceutical] patent holder to a generic patent challenger who agrees to delay entry into the market, as prima facie evidence of an unreasonable restraint of trade." In re K-Dur Antitrust Litig., No. 10-2077, 2012 WL 2877662, at *16 (3d Cir. July 16, 2012). The opinion was the latest salvo in the heated debate between the Federal Trade Commission (FTC) and pharmaceutical companies regarding so-called "reverse payments." Not only did the opinion reverse a long string of circuit court opinions upholding such payments as a proper exercise of patent rights, it supported the FTC's view that such payments are inherently anti-competitive. view more