Activating Actavis with a More Complete Model

Activating Actavis with a More Complete Model – Michael G. Baumann (Economists Incorporated), John Payne Bigelow (Compass Lexecon), Barry C Harris (Economists Incorporated), Kevin M. Murphy (University of Chicago ; National Bureau of Economic Research (NBER)), Janusz A. Ordover (New York University (NYU) – Department of Economics), Robert Willig (Princeton University – Woodrow Wilson School of Public and International Affairs), and Matthew B. Wright (Economists Incorporated)

ABSTRACT: In FTC v. Actavis, Inc. the Supreme Court asked whether a patent settlement agreement involving a so-called “reverse payment” from a patent holder to an alleged infringer of a pharmaceutical patent “can sometimes unreasonably diminish competition in violation of the antitrust laws.” Edlin, Hemphill, Hovenkamp, and Shapiro (2013) propose a method of evaluating the competitive effects of reverse payment settlement agreements that compares the magnitude of the reverse payment to the sum of the patent holder’s prospective litigation costs and the value of services provided by the alleged infringer to the patent holder. This paper shows that the method proposed by Edlin et al. holds only under limited conditions. This paper also identifies conditions where a reverse payment in excess of litigation costs may lead to earlier generic entry and would be procompetitive. In addition to avoided litigation costs, relevant factors in evaluating patent settlements involving a reverse payment may include inter alia the risk-tolerance of the parties, the level of the drug’s sales, the parties’ expectations and information asymmetries related to future competition for the drug, the parties’ subjective views of the likely outcome of the litigation, the parties’ differences in time-values of money, the applicability of Hatch-Waxman first-filer exclusivity, the relative size of the alleged net reverse payment, and the extent of the alleged delay and associated diminution of competition.