When patent infringement cases are settled, it's usually not the alleged infringer who gets paid nearly $400 million.
And when the payments were made to keep a cheaper version of Cipro, one of the world's most popular antibiotics, off the market until the patent expires, some patients' rights groups and government agencies cried foul. Those consumer advocates were dealt a blow in September, when a 2nd Circuit panel decided in Arkansas Carpenters Health and Welfare Fund v. Bayer AG not to reconsider en banc an April ruling that such "pay-to-delay" payments are perfectly legal.
However, the panel invited the plaintiffs to petition for rehearing en banc, saying the "exceptional important" nature of the antitrust implications called for it. Similarly, Judge Rosemary Pooler's dissent suggested the next step for plaintiffs, saying it "will be up to the Supreme Court or Congress to resolve the conflict among the Courts of Appeals."
Edelman says this language shows the law is not cut and dried in this area.