Generic drug deals ‘may be challenged’

The Washington Post

The Supreme Court rattled the pharmaceutical industry Monday when it ruled that antitrust regulators should be able to challenge the arrangements that allow rival drugmakers to delay the sale of a generic drug.

Under such arrangements, known as “reverse payments” or “pay for delay,” brand-name drugmakers facing a patent challenge from generic competitors pay the companies to temporarily stay out of the market.

For more than a decade, the Federal Trade Commission has tried to restrict these kinds of deals, arguing that they’re anti-competitive. But the agency and private plaintiffs pursuing similar cases suffered a string of defeats.

In its 5-3 decision, written by Justice Stephen Breyer, the Supreme Court ruled that the FTC should have been given the opportunity to prove its claims in a case involving a testosterone gel called AndroGel. These types of arrangements can “sometimes” violate antitrust laws and should be subject to more scrutiny, the justices concluded.