In an order today, the Supreme Court asked the US Solicitor General for the Gov’ts views on Joblove v. Barr Labs. This case, also known as Tamoxifen Citrate Antitrust Litigation, questions the antitrust viability of reverse-payment settlements.
Pharmaceutical patent owners and generic makers have been accused of cooperating in a scheme to prop-up drug prices. In a number of cases, generic manufacturers have received payments from patent owners as incentive to drop patent challenges. So far the courts have OK’d the agreements, but the Government is pushing its case for enforcement of the Antitrust laws.
Over the past few years, the FTC & DOJ have been at-odds on whether this business practice represents a problem.
In 2006, FTC v. Schering-Plough, a similar case was presented to the Supreme Court. There, the DOJ filed a brief indicating its disagreement with the FTC and arguing that the high court should not hear the case. In its brief, the DOJ indicated that the Tamoxifen litigation (this case) would be a better avenue for the Supreme Court’s focus. After hearring the DOJ’s argument, the Supreme Court denied cert in Schering-Plough.
- Schering-Plough Discussion
- Discussion of the 2nd Circuit decision in this case.
- MBHB Blog: Barkoff’s Orange Book has more info.