In the wake of COVID-19, pharmaceutical companies rushed to produce vaccinations and continue to work on developing treatments, while the tension caused by reverse payments intensifies between patent and antitrust law. Lawmakers must address this tension, and the current pandemic should serve as a catalyst to prompt reform at the legislative level. By amending the Hatch-Waxman Act, lawmakers can ease the increasing strain between patent and antitrust policy concerns. In 2013, the U.S. Supreme Court attempted to resolve this tension in its landmark decision, F.T.C. v. Actavis, but the tension remains as lower courts struggle to produce a uniform standard when applying Actavis to reverse payment settlements arising as a result of the current Hatch-Waxman Act provisions. Much scholarship exists explaining and addressing the lingering issues surrounding reverse payment settlements. However, no better time exists to address this heightened problem in the pharmaceutical context than now—amidst the COVID-19 pandemic devastating the United States. Lawmakers must act now to shield consumers from big pharma barring public access to affordable medications through reverse payment settlements.
Hannah M. Lasting, Big Pharma, Big Problems: COVID-19 Heightens Patent-Antitrust Tension Caused by Reverse Payments, 44 SEATTLE U. L. REV. 591 (2021).
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