Thanks to the unusual settlement, both sides in the patent infringement suit won big.
The patentee, Schering-Plough Corp., won by protecting its exclusive right to make and sell K-Dur, one of the company’s most popular and profitable patented drugs. Schering got one of its rivals to postpone marketing its (allegedly infringing) generic version of K-Dur.
Drug companies have not always used reverse payments. They began doing so in the late 1990s, but stopped after the FTC filed some antitrust enforcement actions in 2000.
If the high court accepts the case, it is unclear how it might rule. K-Dur concerns “two strong principles that are not completely reconcilable,” Carrier says. “Do you favor settlements or challenges to weak patents?”