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Supreme Court Will Review Eleventh Circuit’s Decision in Andro-Gel® “Pay for Delay” Case
The Supreme Court acted with faster-than-expected speed, granting a petition to review an Eleventh Circuit decision upholding a “pay for delay” agreement (also called a “reverse payment” agreement), which involves the patented drug AndroGel®, against an antitrust attack. As reported in Bloomberg.com, “Companies have struck more than 100 such deals since 2005.”
The Supreme Court granted the petition on December 7, literally only days after the Federal Trade Commission (“FTC”) filed its reply brief on November 21, further advocating for Supreme Court review of the Eleventh Circuit’s decision. In that reply brief, the FTC specifically addressed arguments by two of the respondents to its petition (Par Pharmaceutical Cos. and Paddock Holdings, Inc.) that the Supreme Court should deny review, and argued that this case provides a vehicle for review superior to that presented in two petitions seeking review of a Third Circuit decision in a pay-for-delay case. As reported in our November 15 post, another respondent (Watson Pharmaceuticals, Inc.) actually agreed with the FTC that the Supreme Court should review the case, but argued that it should affirm the Eleventh Circuit’s decision.
The case before the Supreme Court is Federal Trade Comm’n v. Watson Pharms., Inc., No. 12-416 (filed 10/04/12).
 The Eleventh Circuit defines such agreements as those in which a patent owner settles infringement litigation by paying “the allegedly infringing generic drug company to delay entering the market until a specified date, thereby protecting the patent monopoly against a judgment that the patent is invalid or would not be infringed by the generic competitor.” Federal Trade Comm’n v. Watson Pharms., Inc., 677 F.3d 1298, 1301 (11th Cir. 2012), reh’g denied (11th Cir. Jul. 18, 2012).
 Those petitions are: Merck & Co. v. Louisiana Wholesale Drug Co., No. 12-245 (filed 08/24/12), and Upsher-Smith Labs Inc. v. Louisiana Wholesale Drug Co., No. 12-265 (filed 08/29/12). The Third Circuit decision is In re K-Dur Antitrust Litig., 686 F.3d 197 (3d Cir. 2012).