Merck-y Standards: The Third Circuit's Diverging Analysis of Reverse Payment Settlements in In re K-Dur Antitrust Litigation

Abstract

On July 16, 2012, in In re K-Dur Antitrust Litigation, the U.S. Court of Appeals for the Third Circuit held that, when challenged as an antitrust violation, a reverse payment settlement constitutes prima facie evidence of an unreasonable restraint of trade. The “quick look rule of reason” analysis articulated by the court represents a well-intentioned divergence from the Second, Eleventh, and Federal Circuits’ “scope of the patent” test. It does not, however, fully consider the parties’ motivations and the possible public benefit from these settlements. This Comment argues that the court’s introduction of an overly restrictive standard introduces uncertainty that may avert the Hatch-Waxman Act’s goal of speeding public access to more affordable drugs.