WCL Professors Mike Carroll, Jonas Anderson, Jon Baker and Sean Flynn join amicus brief to Supreme Court in FTC v. Watson
The case involves whether reverse-payment agreements are per se lawful unless the underlying patent litigation was a sham or the patent was obtained by fraud (as the court below held), or instead are presumptively anticompetitive and unlawful (as the Third Circuit has held).
The Professors’ brief argues that exclusion-payment settlements fly in the face of not only antitrust law and the regulatory regime but also patent law. “[P]atent policy not only permits legal challenges to weak patents; it affi rmatively encourages those challenges. The court of appeals turned that policy on its head, permitting a patent owner to pay a competitor to avoid the very challenge the law encourages. The scope-of-the-patent test adopted by the court below allows a patentee to convert an initial determination by the PTO to grant a patent into a fi nal, unreviewable conclusion that the patent is necessarily valid, and to do so with no judicial scrutiny whatsoever.”
The full brief can be found here: http://www.antitrustinstitute.org/~antitrust/sites/default/files/SC%20Watson%20academic%20AAI%20brief.pdf