California Approves Pay-for-delay in Cipro Case
August 27, 2009, Global Competition Review

A California state court ruled that Bayer AG did not violate antitrust laws when it paid Barr Pharmaceuticals to delay the entry of its generic version of Bayer’s drug Cipro into the market. The case was brought by indirect purchasers who alleged that the agreement between Bayer and Barr violated the Cartwright Act, California’s antirust law.

J. Mark Gidley, antitrust partner at White & Case LLP, has defended companies in reverse payment cases in the past. "[The] judgment demonstrates further the judicial consensus that final patent settlement agreements should not be challenged under antitrust law," he says. "Judges clearly believe that patents are important."

Gidley says: "The FTC and DOJ are trying to create new law; no precedent supports their view of antitrust law in the area of patent settlements or the alterations they propose for the rule of reason."