Shashank Upadhye Quoted in The Pharma Letter
“US Supreme Court says patent settlement can ‘sometimes’ be illegal”

Seyfarth Shaw Intellectual Property partner Shashank Upadhye is quoted in a June 18 article in The Pharma Letter discussing the U.S. Supreme Court’s “pay-for-delay” case which ruled that the Federal Trade Commission has the right to challenge deals made by brand-name and generic companies in order to delay cheaper copy medicines from coming to the market.

According to Shashank, “This is a case that will cause certain angst for business, but is ripe for antitrust plaintiffs. Here the court said that certain conduct is not per se illegal, but said that antitrust plaintiffs are allowed to at least make their case. The challenge will be that many parties who previously settled their cases operated under the then-existing framework that their conduct was legal. Now the Court has said that the conduct may be illegal (subject to a full litigation now). The Court rejected applying per se rules and allows plaintiffs to at least survive the motions stage. The Court did not hold that payments are illegal. Rather it will now be up to fact-finders to determine if the settlement is anticompetitive….The case will mean that companies may now have a little more difficult time settling cases. Some generic companies who made a business model of filing generic dossiers to settle cases, will now have to re-think its strategy. For law firms representing antitrust defendants, it will certainly create more complex litigation for them.”