Thursday, September 09, 2010

en banc CA2 denies rehearing in Bayer/Teva CIPRO settlement

The Hill noted on 9 Sept 2010:

The U.S. Court of Appeals for the Second Circuit denied a full hearing in the case of a patent settlement concerning the antibiotic drug Cipro.

The Generic Pharmaceutical Association (GPhA) said the decision provides "a clear sign that the FTC's [Federal Trade Commission] position that patent settlements are anti-competitive, anti-consumer is fatally flawed."

Reuters had written:

On April 29, a three-judge panel in New York upheld a lower court's ruling dismissing objections to Bayer AG paying Teva Pharmaceutical Industries Inc's Barr Laboratories to prevent it from bringing to market a version of the anthrax drug Cipro.

But the panel invited further review by the full nine-judge panel of the U.S. Court of Appeals for the 2nd Circuit, which published an order Tuesday denying the rehearing.

There is commentary by Daniel Fisher which includes the text:

The case captures the conflict between patents — a constitutionally mandated process for giving inventors monopolies — and antitrust laws, which are designed to protect consumers against price gouging.

One notes that the Constitution empowers Congress to set up a patent system; it does not mandate one. Inventors are given a right to exclude, not a monopoly.

Of Hatch-Waxman, Fisher writes:

The whole controversy arises from the Hatch-Waxman Act, a 1984 law in which Congress cleverly shoved the question of whether generics could compete with entrenched patentholders in front of the courts.

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Blogger New said...

While I'm somewhat surprised by the Second Circuit's decision not to rehear the case en banc, I am looking forward to (potentially) having the Supreme Court weigh in on pay-for-delay in patent litigation. This case seems like prime SCOTUS material. If the Court does review the case, however, I find it rather unlikely that it would disregard the FTC's longtime hostility to pay-for-delay agreements; and the government's position tends to carry substantial weight with the SCOTUS. But then again, you never know.

5:05 PM  

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