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Activating Actavis: A More Complete Story

Barry C. Harris, Kevin M. Murphy, Robert D. Willig, and Matthew B. Wright, Antitrust, Vol. 28, No. 2, Spring 2014

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In FTC v. Actavis, Inc. the Supreme Court asked whether a patent settlement agreement involving a so-called reverse payment from an incumbent producer (Brand) to an alleged infringer of a pharmaceutical patent (Generic) “can sometimes unreasonably diminish competition in violation of the antitrust laws.” The Actavis Court answered this question in the affirmative, rejecting the Eleventh Circuit’s ruling that held that patent settlement agreements generally were lawful as long as their potential anticompetitive effects fell within the scope of the patent.

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