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 2026

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

AI patents and dairy trademarks are at the centre of two judgments to be handed down next week
Jennifer Che explains how taking on the managing director role at her firm has offered a new perspective, and why Hong Kong is seeing a life sciences boom
AG Barr acquires drinks makers Fentimans and Frobishers, in deals worth more than £50m in total
Tarun Khurana at Khurana & Khurana says corporates must take the lead if patent filing activity is to truly translate into innovation
Michael Moore, head of legal at Glean AI, discusses how in-house IP teams can use AI while protecting enforceability
Counsel for SEP owners and implementers are keeping an eye on the case, which could help shape patent enforcement strategy for years to come
Jacob Schroeder explains how he and his team secured victory for Promptu in a long-running patent infringement battle with Comcast
After Matthew McConaughey registered trademarks to protect his voice and likeness against AI use, lawyers at Skadden explore the options available for celebrities keen to protect their image
The Via members, represented by Licks Attorneys, target the Chinese company and three local outfits, adding to Brazil’s emergence as a key SEP litigation venue
The firm, which has revealed profits of £990,837, claims it is the disruptive force in the IP-legal industry
Gift this article