Orange Book Blog

The FTC last week filed a supplemental brief in the Supreme Court, in response to the Solicitor General’s brief, in FTC v. Schering.  The case involves the legality of "reverse payment" settlements–those from an innovator drug company to a generic drug company–in Hatch-Waxman cases.  The Solicitor General, whose views on the case were requested by the Supreme Court, argued in his brief last month that the Court should deny FTC’s petition for certiorari.  Now, in its supplemental brief, the FTC takes issue with many of the Solicitor General’s arguments.

The FTC argues forcefully that the Solicitor General failed to appreciate the practical effects of allowing reverse payment settlements of Hatch-Waxman litigation.  According to the FTC, "the economic impact of the ruling below on consumers of prescription drugs–including the States–is staggering.  Indeed, billions of dollars in added prescription drug costs annually are at stake."

Nevertheless, the FTC seems to acknowledge the Solicitor General’s point that other reverse payment cases may be more appropriate for Supreme Court review.  In a footnote in its Supplemental Brief, the FTC states:  "In light of the pendency of the petition for rehearing in Tamoxifen [in the 2nd Circuit], and the possibility of the filing of a petition for certiorari in that case, the Court may wish to hold the present case pending final resolution of that case."  Links to the briefs in the Tamoxifen case are provided below.

RELATED READING:

• 19 June 06 ABA Antitrust Section IP Committee E-Bulletin
• 16 June 06 SCOTUSblog post on the new FTC brief
• 19 May 06 Orange Book Blog post, including links to all the briefs
• petition for panel rehearing in the Tamoxifen case
• brief in opposition to panel rehearing in Tamoxifen
• amicus brief of AARP in Tamoxifen, in support of rehearing
• amicus brief of FTC in Tamoxifen, in support of rehearing
• amicus brief of GPhA in Tamoxifen, in opposition to rehearing