The filing details economic considerations relevant to determining the appropriate scope of the U.S. Supreme Court’s 2013 decision in FTC v. Actavis.
Cornerstone Research Vice President Sally Woodhouse coauthored an amicus curiae brief submitted to the U.S. Third Circuit Court of Appeals in the Lamictal Direct Purchaser Antitrust Litigation. The brief, filed in support of defendants-appellees, discussed “economic analyses relevant to assessing the treatment under the antitrust laws of an exclusive license reached as part of a settlement that resolves patent infringement litigation” between branded and generic drug companies.
Several leading antitrust economists affiliated with Cornerstone Research signed the brief, including University of Georgia Professor W. David Bradford, Boston University Professor Iain Cockburn, Duke University Professors Henry G. Grabowski and Tracy R. Lewis, Bates College Professor James W. Hughes, and Cornell University Professor Sean Nicholson, among other signatories. Attorneys from Ballard Spahr submitted the filing in support of SmithKline Beecham Corporation, d/b/a GlaxoSmithKline; Teva Pharmaceutical Industries Ltd.; and Teva Pharmaceuticals, USA.
The brief noted the numerous procompetitive reasons brand companies would be willing to make payments to generic companies when settling patent litigation, the practical difficulties of assessing whether there was a payment and/or the size of the payment when the alleged payment is in the form of an exclusive license (or other noncash consideration), and the potential negative effects on pharmaceutical innovation of subjecting settlements that involve exclusive licenses to antitrust rule-of-reason scrutiny. The brief urged the court to consider these factors when determining the scope of the Supreme Court’s decision in FTC v. Actavis.