When a drug company pays a manufacturer to delay launching a generic drug, is it the act of an illegal monopoly or merely a settlement benefiting both parties?
Michelle Olsen over at Appellate Daily reports that last month "a unanimous three-judge 3rd Circuit panel deciding In Re: K-Dur Antitrust Litigation found that pay-for-delay deals are 'prima facie evidence of an unreasonable restraint of trade.'" In rejecting the alternative "scope of the patent test," the Third Circuit's decision in In re K-Dur creates an intercircuit conflict with the Federal, Second, and Eleventh Circuits.
"Because of the circuit split, the tremendous financial stakes, and the FTC’s pay-for-delay priority," writes Olsen, "the 3rd Circuit decision could very well catch the Supreme Court’s attention." Merck has indicated that it will appeal the panel's decision to the Supreme Court rather than request that the entire Third Circuit rehear its case.
You can read Ms. Olsen's full commentary on this issue over on Appellate Daily here.