On March 19, 2007, the U.S. Supreme Court asked the solicitor general for his views on the petition for certiorari submitted by the plaintiffs in the Tamoxifen litigation. In that 2006 case, the Second Circuit dismissed an action by plaintiffs challenging a 1993 patent litigation settlement between AstraZeneca Pharmaceuticals and Barr Pharmaceuticals that included a so-called “reverse payment.” The court dismissed the case, among other reasons, because AstraZeneca had (subsequent to the settlement) obtained three decisions upholding the validity of the Tamoxifen patents. The decision is described in more detail in our Issue 1.
In Issue 3 we reported that the Supreme Court had denied certiorari in Schering-Plough Corp. v. FTC, another “reverse payment” case. In Schering-Plough, the Eleventh Circuit reversed a Federal Trade Commission (FTC) finding that Schering-Plough had violated the antitrust laws by entering into two patent settlements with generic companies that the FTC contended included illegal “reverse payments.” As we noted, the Schering-Plough case resulted in an almost unprecedented split among the antitrust agencies when the solicitor general (presumably supported by the Antitrust Division) submitted a brief opposing the FTC’s cert. petition and disagreeing with the FTC’s approach to patent settlements with reverse payments.
The Supreme Court now has a second chance to consider whether to review the “reverse payment” patent settlement issue, and the solicitor general has another opportunity to submit views. Given the similarity in the issues presented, it seems likely that the solicitor general and the Supreme Court will end up in the same place in Tamoxifen as they did in Schering-Plough. However, the Supreme Court’s request for the solicitor general’s views could indicate that the issue is closer than one might have expected.