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US: FTC challenges reverse payment suit dismissal

By  |  May 4, 2014

The US Federal Trade Commission has reportedly filed an amicus brief urging an appeals court to reverse an earlier dismissal of a pharmaceutical pay-for-delay lawsuit.

The FTC filed the brief in the US Court of Appeals for the Third Circuit, asking it to reverse the dismissal of Lamictal Direct Purchaser Antitrust Litigation, initially tossed after a district court found that a brand-name pharmaceutical’s agreement with its generic counterpart cannot be deemed a violation of antitrust law under the Supreme Court’s decision in FTC v. Actavis, Inc. because the agreement in question did not involve “cash.”

But according to the FTC, the District Court was erroneous in its dismissal because the pay-for-delay agreement made between the brand-name and generic makers of Lamictal issues the same antitrust issues as Actavis based on the regulator’s empirical study of the competitive effects of such decisions.

A pay-for-delay agreement involves a brand-name drug maker paying its generic competitor to delay the release of its cheaper drug.

Full content: IP Watchdog

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