The Latest Advance in the Debate Over Reverse Payment Settlements: Will the Supreme Court Punt, Again?

On April 24, 2009, a group of professors of law, economics and business, together with the American Antitrust Institute, the Public Patent Foundation, and AARP (collectively "amici") filed an amicus brief urging the Supreme Court to grant certiorari and reverse the decision of the Federal Circuit Court of Appeals in In re Cirpoflaxacin Hydrochloride Antitrust Litigation, 544 F.3d 1323 (Fed. Cir. 2008) ("Cipro"). This is the latest advance in the heated debate over the legality of reverse payment settlements in the pharmaceutical industry, i.e., settlements of patent disputes in which the brand-name pharmaceutical company makes a "reverse" or "exclusion" payment to the would-be generic competitor to delay its entry into the relevant drug market. Such settlements have garnered significant attention and debate over the years because they implicate important policy considerations underlying antitrust and patent laws, as well the vital public interest in curbing soaring healthcare costs.

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