In a recent speech, FTC Commissioner Joshua Wright offered extensive commentary on the Supreme Court’s recent ruling on pharmaceutical patent settlements, FTC v. Actavis, predicting that the ruling will prove to be a “boon” for economic litigation consulting firms. According to Wright, this is because the Court’s rule of reason framework “appears to invite significantly greater incorporation of economic analysis into…both…understanding [the] potential anticompetitive consequences and procompetitive justifications” of such agreements. Commissioner Wright also endorsed the notion that the FTC itself may have a role to play in this respect by applying “it’s institutional advantages in research and reporting” to explore whether certain pharmaceutical patent settlement agreements are more likely than others to be anticompetitive, thereby potentially providing the basis for a case-specific presumption of anticompetitive effects.
In another particularly noteworthy part of the speech, Commissioner Wright explored potential benchmarks against which the size of a reverse payment could be measured in order to determine whether the payment is “large and unjustified.” After noting the two possible benchmarks identified by the Court—expected litigation costs and the value of any services provided by the generic—Wright cast doubt on the efficacy of other proposed benchmarks such as comparing the conditions under the agreement against perfect competition, or alternatively a “fixed threshold number determined to be large.” Wright also cautioned against interpreting the Court’s reference to payment size as a proxy for anticompetitive effects as an affirmation of the “quick-look” rule of reason approach championed by the FTC. Interestingly, Wright did not weigh in on one of the most pressing issues relating to payments under Actavis—whether the Actavis framework also applies to non-monetary forms of consideration.
Even once these issues regarding how to measure the size of the payment are resolved, however, in Wright’s view this is unlikely to be the end of the analysis. In particular, Wright indicated that he sees a continued role for patent validity to play in the analysis, but noted that exactly how it is likely to factor into the analysis remains an open question. According to Wright, “one possibility is that after a plaintiff satisfies its prima facie burden by showing a large payment, the defendant will be able to put on evidence that the strength of its patent justifies the size of the payment or the payment is otherwise not competitively suspect in light of the patent.”