Will the Supreme Court Weigh in on Reverse Payments in ANDA Cases?

We previously reported on developments in various United States Courts of Appeal decisions concerning reverse payments in Hatch-Waxman litigation settlements – that is, payments made by branded pharmaceutical patent holders to generic challengers to postpone market entry of the generic product.

Most recently, as we reported, the Third Circuit in In re K-Dur Antitrust Litig. bucked prior holdings of the Eleventh, Second, and Federal Circuits, ruling that a reverse payment is prima facie evidence of an antitrust violation and, therefore, serves as evidence of unreasonable restraints of trade. In light of the Third Circuit’s divergent decision from other circuit precedent, many predicted a subsequent Petition for Certiorari.

As expected, Merck & Co. recently filed its Petition for a Writ of Certiorari, citing this split of circuit authority as the compelling factor favoring a review by the Supreme Court.

Gibbons will continue to track the status of this pending petition and other developments relating to reverse payments. Of particular interest will be whether the Federal Trade Commission (“FTC”) opts to file its own Petition for a Writ of Certiorari in connection with the Eleventh Circuit’s decision upholding a reverse payment in FTC v. Watson Pharmaceuticals, Inc., No. 10-12729 (11th Cir. Apr. 25, 2012). Stay tuned for more on these important developments.