FTC Amicus Brief Urges Appeals Court to Reverse District Court Ruling that Incorrectly Insulates Pharmaceutical Manufacturers from Antitrust Scrutiny

The Federal Trade Commission filed an amicus brief in the U.S. Court of Appeals for the Third Circuit urging the court to reverse a district court ruling that an alleged reverse-payment settlement of patent litigation did not violate the antitrust laws, in part, because the FTC did not object to the proposed settlement when the companies submitted it to the agency.

The case concerns allegations that Wyeth Pharmaceuticals agreed not to launch an “authorized generic version” of the antidepressant drug Effexor XR to induce Teva Pharmaceuticals Ltd. to abandon its patent challenge and refrain from selling generic Effexor XR for two years. The amicus brief explains that neither submission of a patent litigation agreement to the FTC nor the FTC’s decision not to take action insulates the settling parties from antitrust liability.

The FTC vote approving the amicus brief filing was 4-0. It was filed with the U.S. Court of Appeals for the Third Circuit on November 17, 2015. (FTC File No P082105; the staff contact is Michele Arington, Office of the General Counsel, 202-326-3157.)

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