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« Goeddel v. Sugano (Fed. Cir. 2010) | Main | USPTO Updates Obviousness Examination Guidelines »

September 08, 2010


The agreement between innovator and generic companies may look as though it is within the exclusive zone of patent law. This is so because the certification on product patent which claims per se the said drug is converted into para IV into Para III and constitutes well within the ambit of patent law. However,such agreement per se violates the trade principles and constitutes anti competitiveness.

Any agreement between innovator and generic companies which denies affordability of generic drugs is against the public interest and contravenes and negates the competitive spirit and forms the basis for anti-trust violations.Any such agreement against public interest becomes anti-competitive and seen as a violation of anti trust priniciples.


Again, another nice article on the "reverse-payment" issue. I especially like your comment that the reliance in Pooler's dissent on the "forum of public opinion" is "legal decision by plebiscite, not law." Or as others would say "judicial activism," not "judicial reasoning based on law."

Dear Kumar:

Please read the opinions in the "Part I, Part II, and Part III" posts referenced in this one. The simple calculus you espouse simply does not comport with reality.

Thanks for the comments.

Dear Kevin,
Thanks for your comments. Though, it may not go well with the reality, such agreements needs scrutiny through judicial review.

Dear Kumar:

Agreed. But Judge Pooler and others believe these agreements are pet se illegal. Thus, no judicial review would be necessary. Tamoxifen and other decisions apply a rule of reason, which provides just the like of judicial scrutiny you support.

Thanks for the comment.

While I'm somewhat surprised by the Second Circuit's decision not to rehear the case en banc, I am looking forward to (potentially) having the Supreme Court weigh in on this issue. This case seems like prime SCOTUS material. If the Court does review the case, however, I find it rather unlikely that it would disregard the FTC's longtime hostility to pay-for-delay agreements; and the government's position tends to carry substantial weight with the SCOTUS. But then again, you never know.

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