Supreme Court hears arguments in FTC v Actavis

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Supreme Court hears arguments in FTC v Actavis

supct45new.jpg

Supreme Court justices seemed divided on Monday over the legality of pharmaceutical companies paying generic rivals to keep cheaper alternatives to brand name drugs off the market.

supct.jpg

In Federal Trade Commission v Actavis, the justices heard oral arguments concerning the legality of so-called reverse payment agreements.

The case concerns a fee paid to Actavis by Solvay Pharmaceuticals, which owns a patent on testosterone-raising drug AndroGel. In exchange, Actavis agreed not to produce a generic version of AndroGel for an agreed period.

The FTC claimed the agreement amounted to illegal collusion. Actavis argued that such payments are legal provided the generic company’s delay in producing the drug is limited to the period in which the patent is valid.

But the justices seemed more concerned with the economic impact of the deals.

Justice Anthony Kennedy suggested that reverse payments should not exceed what the generic company could make by launching a competing drug, while Justice Elena Kagan said the companies involved were harming consumers by “splitting monopoly profits”.

Justice Antonin Scalia seemed to attribute the situation to a loophole in the Hatch-Waxman laws, and questioned why the court should correct a “mistake” made by Congress.

The case was previously referred to as Federal Trade Commission v. Watson Pharmaceuticals et. Al, before the combination of Actavis and Watson.

more from across site and SHARED ros bottom lb

More from across our site

Royal Mail Group wins copyright and database right infringement case, in a dispute that can be linked to the history of postcodes in the UK
Managing partner Mark O’Donnell explains why people are at the centre of the Australian outfit’s investment focus and how being independent benefits the firm
IP is becoming one of the most significant drivers of major deals, and law firms are altering their practices to reflect the change
In the second in a new podcast series celebrating the tenth anniversary of IP Inclusive, we discuss IPause, a network set up to support those experiencing (peri)menopause
Firms are adapting litigation strategy as Brazil’s unique legal system and technical expertise have made preliminary injunctions a key tool in global patent disputes
A ruling on confidentiality by the the England and Wales Court of Appeal and an intervention from the US government in the InterDigital v Disney litigation were also among top talking points
Moore & Van Allen hires former Teva counsel Larry Rickles to help expand the firm’s life sciences capabilities
Canadian law firms should avoid ‘tunnel vision’ as exclusive survey reveals client dissatisfaction with risk management advice and value-added services
In major recent developments, the CoA ruled on director liability for patent infringement, and Nokia targeted Paramount at the UPC and in Germany
Niri Shan, the newly appointed head of IP for UK, Ireland and the Middle East, explains why the firm’s international setup has brought UPC success, and addresses German partner departures
Gift this article