FTC Says District Court Erred in Wellbutrin Case
In an amicus brief submitted to the 3rd Circuit Court of Appeals in a case involving a reverse payment from GlaxoSmithKline to Teva to delay entry of generic Wellbutrin XL, the Federal Trade Commission says that a Pennsylvania federal court decision contained four errors and should be overturned. The commission notes that a Supreme Court ruling in FTC v. Actavis established the principle that when the holder of a drug patent pays a generic patent challenger to stay off the market, that reverse payment must be analyzed under the traditional antitrust rule of reason.
In the Wellbutrin case, the commission says, the district court erroneously concluded that the rule of reason principles do not apply because in this case the parties did not settle their underlying patent litigation.
The brief outlines the four “fundamental legal errors” in the district court’s rule of reason analysis.