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# WLF Asks Supreme Court to Overturn 3rd Circuit Decision
- URL: https://www.fdaweb.com/wlf-asks-supreme-court-to-overturn-3rd-circuit-decision/
- Published: 2018-01-09T12:00:00.000Z
- Updated: 2026-09-14T23:11:58.000Z
- Author: David McFarland
- Tags: Drugs, #legacy-id-D5140452

Washington Legal Foundation (WLF) has asked the Supreme Court to overturn a 3rd Circuit Court of Appeals decision in *Pfizer v. Rite Aid Corp* because the decision dramatically expands antitrust law and prevents settling of patent litigation. WLF [says](http://www.wlf.org/litigating/case%5Fdetail.asp?id=930&ref=fdaweb.com) the 3rd Circuit decision requires exacting antitrust scrutiny for virtually any agreement between a branded drug company and a generic company to settle patent infringement litigation.

The filing notes that the Supreme Court held in 2013 in *Actavis* that patent litigation settlements are subject to antitrust scrutiny if the settlement includes a large and unexplained cash payment from the innovator company to the generic company. It held that such payments may be an indication that the innovator company is unreasonably restraining trade by paying a potential competitor to stay out of the market.

WLF says the 3rd Circuit dramatically expanded that ruling by holding that any benefit provided by the innovator company, even an agreement to compromise a damage claim asserted in pending litigation, triggers antitrust scrutiny.

“Settling lawsuits ought to be encouraged,” said WLF chief counsel **Richard Samp**, “because it is more economically efficient than trials and saves judicial resources. Yet, the appeals court’s misguided application of antitrust law in this case will render it virtually impossible to settle drug patent litigation.”