US Supreme Court will have Another Opportunity to Rule on Legality of Patent Settlement Agreements

As previously reported, the US Federal Trade Commission (FTC) and Department of Justice (DOJ) have been at odds over the legality of patent settlement agreements (see E-TIPS®, "Questions Remain Over the Legality of Patent Settlement Agreements", Vol 5, No 5, August 30, 2006). Under a patent settlement agreement of the type at issue, a branded manufacturer pays a generic manufacturer to delay the market entry of a lower priced generic. The US Supreme Court will soon decide if it will hear Joblove v Barr Labs (No 06-830), which deals with a challenge of a patent settlement agreement between Zeneca Inc and Barr Laboratories Inc over the worlds most widely-used cancer drug, tamoxifen. The case (Tamoxifen Citrate Antitrust Litigation) consolidates approximately 30 lawsuits filed across the US by various consumers and consumer groups. The consumer petitioners are supported by a group of 41 professors acting as amici curiae. In the latest step in the action, the Court has asked the DOJ to file a brief outlining its position on the case. A similar petition was put before the Supreme Court last year by the FTC, in FTC v Schering-Plough (See E-TIPS®, "US Supreme Court Refuses to Hear Generics Settlements Case" Vol 5, No 1, July 5, 2006). In that case, in which the DOJ was also invited to submit a brief, the DOJ urged the Court to decline to hear the case, indicating that the Tamoxifen Citrate Antitrust Litigation would be a more suitable case in which to address the issue. After reviewing the DOJ brief in FTC v Schering-Plough, the court denied certiorari. The DOJ's previous comments on the Tamoxifen Citrate Antitrust Litigation suggest that there is a possibility that the Supreme Court will agree to hear the case. In the meantime, those within the pharmaceutical industry will eagerly await the Supreme Court's decision. For the Petition for a Writ of Certiorari, see: http://www.scotusblog.com/movabletype/archives/06-830.pdf For the Brief in Opposition, see: http://www.scotusblog.com/movabletype/archives/06-830BIO.pdf For the Reply Brief, see: http://www.scotusblog.com/movabletype/archives/06-830Reply.pdf For comments on the case, see: http://www.law.com/jsp/article.jsp?id=1173863009469; or http://www.reuters.com/article/health-SP/idUSN1928563420070319 Summary by: Michael Migus