By Jeffrey May, J.D.
Today, the U.S. Supreme Court, in light of its recent
In order to vacate the decision, the Supreme Court granted two petitions for review. Brand-name drug maker Merck & Co. had filed a
In K-Dur Antitrust Litigation, the U.S. Court of Appeals in Philadelphia ruled that reverse payment settlements between patent holders and would-be generic competitors in the pharmaceutical industry should be reviewed under a “quick look” rule of reason analysis based on the economic realities of the reverse payment settlement. This is one of the appellate court decisions that helped to create a split among the circuits on the appropriate standard for review of these agreement, thereby prompting U.S. Supreme Court review in Actavis.
Reversing summary judgment in favor of the drug companies, the Third Circuit held that wholesalers and retailers who purchased a brand-name sustained-release potassium chloride supplement (K-Dur) used to treat high blood pressure could proceed with an antitrust challenge to patent infringement litigation settlement agreements between Schering-Plough Corporation—the manufacturer of K-Dur—and generic drug companies. The purchasers alleged that the settlements included payments from Schering to the generic drug makers and resulted in the delayed entry of a generic alternative to K-Dur.
Attorneys: Kannon K. Shanmugam (Williams & Connolly LLP) for Merck & Co. Thomas C. Goldstein (Goldstein & Russell, P.C.) for Louisiana Wholesale Drug Company, Inc. Jay P. Lefkowitz (Kirkland & Ellis LLP) for Upsher-Smith Laboratories, Inc.
Companies: Merck & Co.; Louisiana Wholesale Drug Company, Inc.; Upsher-Smith Laboratories, Inc.; Schering-Plough Corp.
MainStory: TopStory Antitrust
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