Uncertainty and Reverse Payments

Publication Title

Tennessee Law Review

Document Type

Article

Publication Date

Fall 2016

Abstract

The current approach to "reverse payment" settlements of drug patent litigation seeks to preclude only those settlements guaranteed to harm consumers, rather than all that could harm them. Antitrust tolerates the possibility of harm in order to give firms the freedom to make settlements that might benefit consumers, relative to what courts would achieve under patent law. Antitrust's mission is not, however, to improve upon outcomes under patent law, but rather to prevent harm to consumers. Accordingly, antitrust must minimize the possibility of harm, even if that precludes the chance of gain. I show that a ban on all settlements that fix a date of entry, regardless of the existence of a reverse payment or the number of generic challengers, is the best way to do that.

Comments

External Links

Westlaw

Lexis Advance

HeinOnline

Recommended Citation

Ramsi A. Woodcock, Uncertainty and Reverse Payments, 84 Tenn. L. Rev. 99 (2016).

Volume

84

Issue

1

First Page

99

Last Page

155

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