In a multi-district consolidation, Judge Thrash, Northern District of Georgia, ruled that reverse payment settlements between Solvay Pharmaceuticals and generic drug makers involving the testosterone supplement AndroGel were legal. The Federal Trade Commission and private plaintiffs had alleged that the settlements were anticompetitive because they constituted payments in exchange for keeping generic competition off the market until 2015. The court held otherwise on the ground that because the settlement did not extend Solvay’s patent beyond its 2020 expiration, they could not be anticompetitive.
Despite the setback, the FTC has vowed to continue to challenge reverse payments.
The court did permit a sham litigation challenge to continue. That claim, by direct purchasers of the drug, argued that Solvay filed objectively baseless patent infringement suits to slow the entry of competitors. The plaintiffs argued that the litigation was objectively baseless because of a mistake in a Solvay patent, which Solvay admits. Whether the suits were in fact baseless remains to be determined.