The law regarding reverse payment settlements is anything but settled. Reverse payment settlements are settlements that occur during a patent infringement litigation in which a pharmaceutical patent holder pays a generic drug producer to not infringe on the pharmaceutical patent. Despite the recent decision by the United States Supreme Court in FTC v. Actavis, Inc., there are still unanswered questions about how the “full rule of reason” analysis will be applied to reverse payment. This Comment argues that despite the outcome in Actavis, the complex regulatory framework of the Hatch–Waxman Act will create repeated conflicts between antitrust law and patent law because it attempts to use private actors as proxies for the interests of externalities. Thus, the only long-term solution is to pass a legislative amendment and have the government assume responsibility for litigating the validity of weak patents in the reverse- payment settlement context.
Rachel A. Lewis, Inevitable Imbalance: Why FTC v. Actavis Was Inadequate to Solve the Reverse Payment Settlement Problem and Proposing a New Amendment to the Hatch-Waxman Act, 37 SEATTLE U. L. REV. 1059 (2014).