Two years after Actavis, several courts have reviewed complaints of breaches of agreements under reverse payment agreements. However, uncertainties remain as to the correct application of the common sense test, not least because it applies to comparisons that do not contain monetary compensation. Some courts have held that so-called self-payment invoices must include cash considerations to be considered a reverse payment; Other jurisdictions have found that no consideration is required for a counter-payment payment; while others have found that scriptural consideration is not necessary, but that the invalid consideration must be converted into a monetary value. In addition, the majority drew attention to the singularity of reverse payments, in which «the party without a claim for damages» is the party that pays the other party to remain outside the patent holder`s market, contrary to how the patent holder would demand a sum in compensation for the harm caused by the infringer. The majority argued that this unusual distinction was true and that it was not normal for reverse payments to be a normal form of patent dispute resolution and therefore cannot be considered solely for the purpose of patent law where there is an anti-competitive objective. Previous precedents, such as United States v. Singer Mfg. Co. and United States v. New Wrinkle, Inc. show that patent litigation can be used for anti-competitive purposes and must therefore be considered in light of cartel policy. As the Court has done in such cases, in order to determine whether «patent law policy can compensate for the policy of cartels and abuse of dominance that strongly favours competition.»  In addition, patent policy is only intended to ensure that agreements do not protect invalid patents from control; the Court of Justice declared these agreements unlawful «so that the public is not constantly obliged to pay tribute to the so-called monopolies without necessity or justification.» » The Third Circuit breathed a sigh and found that a no-AG agreement could be investigated in common sense on the basis of the reasons given.11 The court justified Actavis by the fact that «reverse payments are problematic because they can have a negative impact on the well-being of consumers by avoiding the risk of competition resulting from the expected outcome of the trial.» 12 As such, the potential anti-competitive harm of reverse payment from companies that «eliminate the risk of patent nullity or non-counterfeiting» by «paying the challenger to stay out of the market.» 13 The Federal Trade Commission filed an amicus letter in the U.S. District Court for the District of New Jersey, stating that an agreement by a branded company not to bring generic drugs (GAs) was a «convenient method» for brand name drug companies to pay generic operators to delay their entry into the market.
por Gonzalo Iñigo Serrat / domingo, 13 diciembre 2020 / Publicado en Sin categoría