Case Law on Reverse Payments Sample Clauses

Case Law on Reverse Payments. US courts took diverging views as to the consistency of these agreements with competition rules. The different approaches somehow reflect the different roles played by patent validity and scope scrutiny in assessing whether a “pay-for- delay” agreement is consistent with antitrust rules. To begin with, part of the case law held that reverse payments are per se illegal. This is the position of the Sixth Circuit of Court of Appeals In re Cardizem, where the court stated that the agreement “was, at its core, a horizontal agreement to eliminate competition in the market for Cardizem CD throughout the entire United States, a classic example of a per se illegal restraint of trade”.28 In this regard, it is worth observing that the court took this view29 without directly or indirectly scrutinising the validity and scope of the patent. As it clearly expressed a negative judgment towards the agreement, it did not need to analyse whether the agreement affected the relevant market or examine the applicable defences.30 In contrast, the Second and Eleventh Circuits squarely rejected the per se rule and applied two different versions of scope of patent test.31 The Second Circuit came up with a “formal” scope of patent test according to which reverse 25 SC Xxxxxxxx, “Paying for Delay: Pharmaceutical Patent Settlement as a Regulatory Design Problem” (2006) 81 New York University Law Review 1553, 1560.