U.S. Supreme Court denies certiorari in reverse payment case

On 22 June 2009 the U.S. Supreme Court denied certiorari in a reverse payment settlement case (Arkansas Carpenters, et al. v. Bayer AG and Bayer Corp., et al., Docket 08-1194). Earlier, the Federal Circuit held in the case that such a settlement was not anti-competitive because it fell within the exclusive scope of the patent rights (In re Ciprofloxacin Hydrochloride Antitrust Litigation, 544 f.3d 1323 (Fed. Cir. 2008), see Newsletter 1/2008, p. 2).

The approach of near per se legality of reverse payment settlements that do not extend beyond the scope of the patent, applied by the Federal Circuit and the 2nd Circuit, has been heavily criticized and, as noted below, has also been addressed in a recent amicus brief by the Department of Justice in the 2nd Circuit. Nonetheless, despite these concerns and the potentially conflicting approaches adopted in other circuits, the U.S. Supreme Court denied the petition for certiorari. [Juha Vesala]