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Deactivating Actavis: The Clash Between The Supreme Court And (Some) Lower Courts, Joshua Davis, Ryan Mcewan
Deactivating Actavis: The Clash Between The Supreme Court And (Some) Lower Courts, Joshua Davis, Ryan Mcewan
Joshua P. Davis
Numerous trial courts have misinterpreted the Supreme Court’s recent decision in FTC v. Actavis, Inc. An interesting question is why they have done so. Perhaps lower courts disagree with the Supreme Court about so-called “reverse payment” cases, the subject of the Actavis opinion. Or perhaps they simply have made random mistakes, as is perhaps inevitable, particularly in a challenging area of the law like antitrust. This Article suggests an alternative account: that lower courts are seeking clear guidance from Actavis, clear guidance that the Supreme Court has not tended to provide in antitrust cases in general and that it did …
Applying Litigation Economics To Patent Settlements: Why Reverse Payments Should Be Per Se Illegal, Joshua P. Davis
Applying Litigation Economics To Patent Settlements: Why Reverse Payments Should Be Per Se Illegal, Joshua P. Davis
Joshua P. Davis
One of the most pressing issues in antitrust law is how to assess settlements of patent disputes that involve payments from brand name to generic drug manufacturers. At stake are billions of dollars, both in inflated prices to consumers attempting to meet their medical needs and in exposure to liability for drug manufacturers. This Article applies the economics of dispute resolution to clarify the costs and benefits of various approaches to assessing patent settlements in the context of the Hatch-Waxman Act. It concludes that reverse payments should be banned under a per se rule, unless and until courts are presented …