US: SCOTUS will not review pay-for-delay Case over GSK’s Lamictal

The US Supreme Court declined to review an appeal from a Third Circuit decision finding that a settlement between GlaxoSmithKline and Teva Pharmaceutical Industries involving the anticonvulsant drug Lamictal can raise antitrust scrutiny even in the absence of a cash payment between the parties.

GSK and Teva filed a petition for Supreme Court review in February, arguing that a no-AG agreement is merely a form of exclusive license expressly contemplated by the patent laws. The petition requested that the justices clear up “disagreement and confusion” about what kinds of settlements can be scrutinized under Actavis.

The Supreme Court asked the US Solicitor General to provide the government position on the issue. In a brief filed in October, Acting Solicitor General Ian Gershengorn said the 3rd Circuit decision was correct because no-AG agreements share many features with settlements that involve reverse payments. “Accordingly, like a reverse payment of cash, a no-AG agreement can have ‘significant adverse effects on competition.’” The justices followed this advice and denied GSK/Teva’s petition for a second look.

As of now, no other circuit has addressed the issue whether a no-AG agreement raises antitrust concerns.

Full Content: JD Supra

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