Supporters of the scope-of-the-patent test assert that it promotes the judicial policy of favoring settlements. Opponents argue that it goes too far. “As important as settlement is, too-early settlement deprives the public of the benefit of weeding out bad patents,” says Carole Handler, a partner at Lathrop & Gage.

One of the main goals of the Hatch-Waxman Act—the federal statute that regulates the sale of drugs—is to foster competition by encouraging makers of generic drugs to challenge the validity of drug patents. “That was a central part of the Hatch-Waxman Act,” says Prof. Michael Carrier of Rutgers School of Law. “The drafters of Hatch-Waxman really wanted to encourage challenges to invalid patents.”

By allowing patentees to buy off challenges to the validity of their patents, the scope-of-the-patent test conflicts with a crucial part of Hatch-Waxman, according to many experts. The 3rd Circuit agreed, stating in In re K-Dur Antitrust Litigation that the scope-of-the-patent test “is contrary to the policies underlying the Hatch-Waxman Act.”

Supporters of the scope-of-the-patent test assert that it promotes the judicial policy of favoring settlements. Opponents argue that it goes too far. “As important as settlement is, too-early settlement deprives the public of the benefit of weeding out bad patents,” says Carole Handler, a partner at Lathrop & Gage.

One of the main goals of the Hatch-Waxman Act—the federal statute that regulates the sale of drugs—is to foster competition by encouraging makers of generic drugs to challenge the validity of drug patents. “That was a central part of the Hatch-Waxman Act,” says Prof. Michael Carrier of Rutgers School of Law. “The drafters of Hatch-Waxman really wanted to encourage challenges to invalid patents.”

By allowing patentees to buy off challenges to the validity of their patents, the scope-of-the-patent test conflicts with a crucial part of Hatch-Waxman, according to many experts. The 3rd Circuit agreed, stating in In re K-Dur Antitrust Litigation that the scope-of-the-patent test “is contrary to the policies underlying the Hatch-Waxman Act.”