U.S. Supreme Court denies certiorari in reverse payment settlement suit

On 7 March 2011, the U.S. Supreme Court denied certiorari in the latest attempt to bring reverse payment settlements before the Court (Louisiana Wholesale Drug Co., Inc., et al. v. Bayer AG, et al., see Newsletter 5/2010 p. 2 and 3/2010 p. 2 for background of the case).

The denial comes despite considerable criticism of the “scope of patent” standard applied by the Second Circuit (from the Court of Appeals that heard the case) and some other circuit courts pursuant to which reverse payment settlements that do not extend beyond the scope of the patent are held virtually per se legal under antitrust laws. The U.S. Department of Justice and the Federal Trade Commission have strongly questioned the appropriateness of such a standard (see e.g. Newsletter 5/2010 p. 2, 3/2010 p. 2, 4/2009 p. 2 for their amicus curie filings in the case before the Second Circuit).

In 2009, the U.S. Supreme Court also denied certiorari (see Newsletter 2009/4 p. 2). [Juha Vesala]