CA11: the intersection of patent, antitrust, and generic drugs

A rather important case, I think, and one that deserves more than my quick read and this brief report: Schering Plough v. FTC. The FTC, under its antitrust enforcement authority, had issued an order that Schering Plough cease and desist from entering into settlement agreements with generic-drug manufacturers, under which the generic manufacturers would get some $ or thing of value and would promise not to manufacture some generic drug for a period of time. You see the concern: that what might really be going on in such a case is not a good-faith settlement of patent litigation (brought by Schering-Plough, claiming that the generic violated its patent) but instead a collusive "we'll pay you not to compete" thing.

The Eleventh Circuit, though, sets aside the FTC's order, holding in a nutshell that there was insufficient evidence that such a collusive thing was really going on (i.e., there was insufficient evidence of an "unreasonable restraint of trade"), and rejecting the FTC's use of a sort of per se rule against such settlement agreements.