In re K-Dur Antitrust Litigation

Amicus brief before the United States Court of Appeals for the Third Circuit, supporting plaintiffs/appellants and urging reversal of a decision by the United States District Court for the District of New Jersey. That decision dismissed federal antitrust claims brought by direct and indirect purchasers of the drug K-Dur, a blood pressure medication. Plaintiffs alleged that, when K-Dur’s manufacturer, Schering Plough Corp., settled patent infringement litigation that it had brought against two generic drug companies, the settlement agreements, which restricted the generic companies from marketing their generic versions of K-Dur and provided for payments from Schering to the generic companies, violated the antitrust laws. The district court granted the drug companies’ motions for summary judgment on the grounds that the patent at issue trumped any application of the antitrust laws. In particular, the court held that there was no antitrust violation because the agreements settling the infringement litigation applied only to the generic versions of K-Dur, and did not restrict the marketing of those generics beyond the expiration date of Schering’s patent. In its amicus brief, the Commission argues that the district court’s decision is inconsistent with the antitrust laws and the Hatch-Waxman Act. The Commission further argues that such exclusion-payment settlements should be treated as presumptively unlawful.