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![“[The Constitution’s art. I., § 8, cl. 8] Patent Clause itself reflects a balance
between the need to encourage innovation and the avoidance of
monopolies which stifle competition without any concomitant advance in
the ‘Progress of Science and useful Arts.’”
Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. (1989)
ANTITRUST VS PATENT LAW](https://image.slidesharecdn.com/epip2016-160907234318/85/Size-matters-Reverse-payment-settlements-in-patent-disputes-3-320.jpg)
Size matters:Reverse payment settlements in patent disputes
- 1. SIZE MATTERS JUSTIFYING SIZEABLEREVERSE PAYMENTS IN PATENT DISPUTES 4th September 2016 EPIP 2016, Oxford A4 - Improving Patent Systems
- 2. ANTITRUST VS PATENT LAW REVERSEPAYMENTS POLICING PATENTS THE LIMITS OF REASON
- 3. “[The Constitution’s art.I., § 8, cl. 8] Patent Clause itself reflects a balance between the need to encourage innovation and the avoidance of monopolies which stifle competition without any concomitant advance in the ‘Progress of Science and useful Arts.’” Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. (1989) ANTITRUST VS PATENT LAW
- 4. ANTITRUST VS PATENTLAW Patents are barriers to entry Patents are esssential incentives THE OSTENSIBLY IRRECONSIABLE TENSION
- 5. ANTITRUST VS PATENTLAW Competition law and patents care about dynamic markets THE REALITY
- 6. ANTITRUST VS PATENT LAW REVERSEPAYMENTS POLICING PATENTS THE LIMITS OF REASON
- 7. REVERSE PAYMENTS A patent holder THEDEAL + A claimed infringement = A dispute + Consideration to infringer = A reverse payment i.e. pay-to-delay
- 8. 145 finalized patentsettlements 29 were suspected for potential pay-for-delay 2013 REVERSE PAYMENTS
- 9. Drug Price Competitionand Patent Term Restoration Act i.e. Hatch-Waxman Act of 1984 THE BATTLE GROUND: FIRST FILER ADVANTAGE Abbreviated New Drug Application certify that the patent in question is invalid or is not infringed by the generic product and notify rights holder 180 day exclusivity first filer gets 180 days marketing exclusivity, typically worth millions REVERSE PAYMENTS
- 10. ANTITRUST VS PATENT LAW REVERSEPAYMENTS THE LIMITS OF REASON POLICING PATENTS
- 11. Surely a formalagreement limiting competition between two rivals is unredeemable? PRIMA FACIE THE LIMITS OF REASON
- 12. ACTAVIS 2013 Settlements promoteefficiency THE LIMITS OF REASON Exclusion can happen within the scope of the patent Unusual form of settlement prone to cause harm Not per se unlawful, but not immune from antitrust scrutiny Courts to apply the rule of reason approach
- 13. ACTAVIS 2013 Unexplained sizeof payment can be a signal of collusion THE LIMITS OF REASON Unexplained size can be a signal of a weak patent Has the brand conveyed to the generic a type of consideration not available as a direct consequence of winning the lawsuit? The size Money No-authorized-generic The form Procompetitive effects?
- 14. the typical litigationfees, inclusive of translation and other services, range from $2.65 million to $6 million with generic manufacturer incurring costs of $10 million during each litigation effort on average MEASURING UP
- 15. ANTITRUST VS PATENT LAW REVERSEPAYMENTS THE LIMITS OF REASON POLICING PATENTS
- 16. McDonald: all patent settlementspreclude a judicial resolution by definition THE MORAL WRONG POLICING PATENTS Reasoner: Too great a willingness to find antitrust violations in settlement arrangements would significantly inhibit settlements of many types of cases at real cost to the administration of justice, with little likelihood of any countervailing benefit to the public interest
- 17. Does a competitorhave the duty to go forward with an invalidation suit? OPEN QUESTIONS POLICING PATENTS Should reverse payments be apportioned in accordance to estimated probabilities of success in litigation? How about a first filer?
- 18. Thank you T. AlexanderPuutio alexander.puutio@gmail.com ,puutio@un.org 4th September 2016 EPIP 2016, Oxford A4 - Improving Patent Systems
Editor's Notes
- #13 Solvay Androgel – Actavis claims para IV