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Paying for Delay and the Rule of Reason – Federal Trade Commission v. Actavis inc et al

25 Jun 2013

On 17 June 2013, the Supreme Court of the United States handed down its judgment in FTC v Actavis, Inc., where it considered for the first time the appropriate antitrust analysis of reverse payment patent settlements (so-called “pay for delay” agreements) in the pharmaceutical sector and held that such settlements fall to be analysed under the “rule of reason”, that is by reference to their actual effects on competition in all the relevant circumstances. In taking this view, the Supreme Court overturned Eleventh Circuit precedent under which settlements were exempt from anti-trust scrutiny provided that they fell within the scope of the patent.