The Preserve Access to Affordable Generics Act: Will Congress\u27s Response to Reverse Payment Patent Settlements Enhance Competition in the Pharmaceutical Market?, 7 J. Marshall Rev. Intell. Prop. L. 150 (2007)

In response to the Supreme Court’s failure to grant writ of certiorari to Federal Trade Commission v. Schering-Plough Corp., Congress proposed the Preserve Access to Affordable Generics Act to once again amend the Hatch-Waxman Act of 1984. Traditionally, the courts have used two antitrust standards, the rule of reason and the per se illegal rule, to determine whether a reverse payment patent settlement restrains trade. In Schering-Plough, the Eleventh Circuit articulated a third standard and held the reverse payment settlements between a pioneer drug company and two generic drug companies valid. This article proposes that traditional analysis of the rule of reason must be uniformly applied to determine the validity of reverse payment patent settlements under the antitrust laws and the proposed amendment will neither enhance competition nor benefit the public