FTC v. Actavis Argument Recap

I attended the Supreme Court argument in FTC v. Actavis today (as I noted in my earlier post previewing the case), which involves when a brand name pharmaceutical company may make a "reverse payment" to a generic company as part of a settlement that delays the generic's market entry. The Court expressed skepticism toward both the pharmaceutical companies' desired hands-off approach (which would find such payments to almost always be within the "scope of the patent") and the FTC's "quick look" approach (which would find such payments to presumptively be antitrust violations). The Court might find middle ground by holding that such settlements, like most antitrust issues, are subject to the "rule of reason."

Academics on FTC v. Actavis

This morning the Supreme Court hears argument in FTC v. Actavis (previously FTC v. Watson), in which the Court will decide when a brand-name pharmaceutical company may offer a "reverse payment" settlement to a generic company in exchange for the generic dropping a patent challenge and staying out of the market. Brand-name companies can use this strategy without triggering an endless stream of generic settlements because the first generic to file a "paragraph IV" certification challenging the brand's patents gets 180 days of market exclusivity before the FDA will approve another generic (unless forfeited), which gives a second generic less incentive to challenge the patents and thus less leverage in extracting a settlement.

Shortcuts for Writing Law Review Articles on a Mac

Mac users, you probably use ⌘ + I for italics all the time, but did you know about ⌘ + K for small caps? I have been focused on finishing some articles lately, which has left little time for blogging, but I thought I'd share some shortcuts and tips that might be useful for other folks writing legal scholarship (patent or otherwise) in Microsoft Word on a Mac.

Top 10 New IP Paper Downloads

Here's an updated list of the most downloaded IP papers that were posted on SSRN in the past 60 days:

1. Money from Music: Survey Evidence on Musicians’ Revenue and Lessons About Copyright Incentives, by Peter C. DiCola (see my last most-downloaded post for links)
2. The Federal Circuit's New Obviousness Jurisprudence: An Empirical Study, by Jason Rantanen (Jason posted about this on Patently-O)
3. Orphan Works and the Search for Rightsholders: Who Participates in a 'Diligent Search' under Present and Proposed Regimes?, by David R. Hansen, Gwen Hinze, Jennifer M. Urban (see description by Dave Hasen here)
4. Leistungsschutzrecht für Presseverlage: Müsste Google wirklich zahlen? – eine kartellrechtliche Analyse (Ancillary Copyright Law for News Publishers: Would Google Really Have to Pay? – An Antitrust Law Analysis), by Christian Kersting, Sebastian Dworschak (still at #4, just like last month)
5. A Case for the Public Domain, by Clark D. Asay (argues for public domain approach rather than "copyleft" open licenses)
6. The Invention of an Investment Incentive for Pharmaceutical Innovation, by Shamnad Basheer (advocates an optional "investment protection" regime for drug development, which is similar to prize proposals like the Health Impact Fund except that the government-determined reward is based on a variable-length guaranteed market exclusivity)
7. The HOB-Vín Judgment: A Failed Attempt to Standardise the Visual Imagery, Packaging and Appeal of Alcohol Products, by Alberto Alemanno
8. Rush to Judgment? Trial Length and Outcomes in Patent Cases, by Mark A. Lemley, Jamie Kendall, Clint Martin (based on study of all patent trials over past 11 years, finds juries are more favorable to patentees than judges, length of trial does not affect outcome, and EDTex win rates aren't that different)
9. Ten Years of DG Competition Effort to Provide Guidance on the Application of Competition Rules to the Licensing of Standard-Essential Patents: Where Do We Stand?, by Damien Geradin
10. Fixing Software Patents, by Eric Goldman (nice essay written in connection with Santa Clara "Solutions to the Software Patent Problem" conference; also see my recap here)