Second Circuit Upholds Reverse Payments

In a case involving Tamoxifin, the Second Circuit held that a reverse payment as settlement in a patent infringement suit, while suspicious, did not violate the antitrust law under closer scrutiny.   The decision now creates a 2-1 split among the circuits with the Second and Eleventh Circuits upholding reverse payments and the Sixth finding them a per se violation of the antitrust law.  The Supreme Court recently sought additional briefing from the Solicitor General in the Eleventh Circuit case involving Schering Plough, and some expect the Court to grant the FTC's cert petition in the Schering Plough case.