Antitrust and Patent Settlements

Posted by D. Daniel Sokol

A number of recent law review articles have covered patent settlement, for example here, here and here. This week, the FTC released its FY2006 report on pharmaceutical patent settlements.  In FY2006, a generic received a payment from a branded pharmaceutical in 14 of 28 final settlements.  This figure is up from 3 of 11 final settlements in FY 2005 and 0 of 14 final settlements in FY 2004.  To put in context, all of the FY2006 settlements occurred after the 11th Circuit Court of Appeals’ decision in F.T.C. v. Schering-Plough Corp., 402 F.3d 1056 (11th Cir. 2005).  In Schering-Plough, the 11th Circuit reversed an FTC decision that two settlements between generics and branded pharmaceuticals were a violation under the FTC Act.