Minnesota Journal of Law, Science & Technology
Abstract
In January 2025, the U.S. Federal Trade Commission (FTC) reported that a new form of “possible compensation” from brand drug manufacturers to generic (or biosimilar) manufacturers, specifically “quantity restrictions,” have become “increasingly prevalent” in pharmaceutical patent settlement agreements filed with FTC under the Medicare Prescription Drug, Improvement, and Modernization Act of 2003. As the FTC noted, “quantity restrictions” may reduce the settling firm’s incentives to compete, resulting in supracompetitive prices for the brand and generic drug. This article summarizes trends in pharmaceutical patent settlement agreements and reverse-payment antitrust litigation since the Supreme Court’s landmark decision in FTC v. Actavis. Focusing on the requirement that private plaintiffs must prove not only an antitrust violation but also antitrust injury, this article discusses the types of evidence considered by economists, courts, and juries when evaluating causation in reverse-payment antitrust litigation. Recent trends suggest that, as these cases proceed through the various stages of litigation, courts and juries continue to weigh the strength of the underlying patent(s), among other factors that inform whether the generic firm could or would have launched earlier in the counterfactual (“but-for”) world without the alleged anticompetitive patent settlement agreement.
Volume
27
Issue
2
Page
443
Year
2026
Recommended Citation
Kelly L. Nordby,
Trends in Pharmaceutical Patent Settlements Since Actavis and Private Plaintiffs' Causation Requirement,
27
Minn. J.L. Sci. & Tech.
443
(2026).
Available at:
https://scholarship.law.umn.edu/mjlst/vol27/iss2/6
Rights
http://rightsstatements.org/vocab/InC-EDU/1.0/
Publication Abbreviation
Minn. J. L. Sci. & Tech.
