Federal Trade Commission Continues to Put a Spotlight on Pharmaceutical Patent Agreements

摘要

The Federal Trade Commission (FTC) recently demonstrated that it is becoming more proactive in its efforts to scrutinize the competitive effects of pharmaceutical industry agreements regarding patents. First, as Barbara H. Wootton and Matthew Shultz of Arnold & Porter LLP point out, the FTC announced that it was proposing to amend the Hart-Scott-Rodino (HSR) premerger notification rules to broaden the types of exclusive patent rights transfers, in the pharmaceutical industry only, that are report-able under the HSR Act. Second, the FTC also announced that it moved for leave to file an amicus brief with U.S. District Court in New Jersey for In re Effexor XR Antitrust Litigation, arguing that a branded company's commitment not to launch an authorized generic in competition with a generic company as part of a patent settlement constitutes a "payment" for delayed generic entry under the Third Circuit's recent decision in In re K-Dur Antitrust Litigation which adopted the FTC's position on the standard for antitrust review of pharmaceutical patent settlements.