The interest of the U.S. Federal Trade Commission in the pharmaceutical industry has heightened in recent years. Most controversially, the agency has challenged settlements involving “reverse payments,” which are payments from a branded company to a generic company that delay the generic’s market entry.
In 2001 the FTC brought a complaint against Schering-Plough Corp. challenging settlement agreements that it had entered into with two generic companies it had accused of violating its patents for its potassium chloride supplements. The FTC concluded that the settlement agreementswhich the FTC found involved reverse paymentsviolated the antitrust laws. On appeal, however, in 2005 the U.S. Court of Appeals for the Eleventh Circuit overturned the decision, finding no evidence that the agreements had impaired competition beyond the scope of ScheringPlough’s patents.
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