Not this case, anyway. Solicitor General Paul Clement advises the Supreme Court that an appeal to review a closely watched reverse settlement case should be denied, because it’s not “an attractive vehicle,” he writes in his brief.

At issue is a lawsuit challenging a $21 million deal in which Barr Pharmaceuticals agreed to delay marketing a generic version of AstraZeneca’s widely prescxribed Tamoxifen breast cancer treatment. The case, which goes back 20 years, consolidates some 30 lawsuits filed by consumers and their insurers on anti-trust grounds.

During its last term, the court declined a request by the Federal Trade Commission to review the same issue in a case involving Schering-Plough. In that case, the US solicitor general filed a brief at the court’s invitation and recommended denying a review, saying the case was a poor vehicle for examining antitrust issues involved.

This time, Clement reaches the same conclusion for these reasons: “The federal antitrust claims in this case appear to be moot, the factual setting is atypical and unlikely to recur, and subsequent regulatory changes may undercut one of the theories of competitive harm advanced by petitioners. For those reasons, the petition should be denied.”

One issued cited by Clement is the complexity involved in resolving patent rights and antitrust concerns, which he says were complicated by the Hatch-Waxman Act.

“Those competing considerations suggest that, in the context of the Hatch-Waxman Act, the mere presence of a substantial reverse payment as part of the settlement of a patent infringement claim is not sufficient to establish that the settlement is unlawful under the Sherman Act. The correct approach is to apply the rule of reason, rather than a rule of per
se legality (or illegality).”

The recommendation won’t be well received by the FTC, which has vowed to fight reverse payments. Recently, officials from the FTC and the Department of Justice engaged in an unusual public exchange over the issue.

Here’s the Solicitor General’s brief;
Background from The Legal Times.

Hat tip to the Antitrust Review blog.[tags]Antitrust, AstraZeneca, Barr Pharmaceuticals, Generics, Patents[/tags]