And the Score is………….Patent Law 3 Antitrust Law 1

When a branded drug manufacturer pays a generic manufacturer not to compete, it sounds like a blatant antitrust violation, right? Wrong! Recently, the Federal Circuit joined the Second and Eleventh Circuits in giving a pass to drug manufacturers that have made reverse payment settlements under the Hatch Waxman Act, indicating that such settlements generally pass muster under the antitrust laws. In the recent decision of In re Ciprofloxin Hydrochloride Antitrust Litigation, 2008 WL 4570669 (Fed. Cir. Oct. 15, 2008), the court had no problem with Bayer’s several million dollar payment to Barr Labs in settlement of Barr’s suit against Bayer regarding the popular antibiotic Cipro.

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