In June 2006, the US Supreme Court denied certiorari in Federal Trade Commission v. Schering-Plough Corp., declining review of the Eleventh Circuit that held that settlements between Schering-Plough, the maker of brand drug K-Dur, and its competitors Upsher-Smith Laboratories and ESI Lederle, Inc., did not violate antitrust laws.
The settlements provided that Upsher-Smith and ESI Lederle would not exercise rights to launch generic versions of Schering-Plough's drug under Hatch-Waxman Amendments to the Food, Drug, and Cosmetics Act, in exchange for monetary consideration.
Recent statements by senior FTC officials indicate that the FTC still believes these settlements are anticompetitive and is looking for another appropriate case. Companies considering settling pharmaceutical patent litigation should be cautious regarding the agreement terms, as responding to the FTC’s requests to produce documents creates burdens, and publicity surrounding an investigation might trigger private suits.
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