The brand name company? Or the generic manufacturer? What about the consumer? (We know that law firms do nicely, thank you very much).

The issue isn’t likely to be resolved anytime soon, but a few patent attorneys say the Federal Trade Commission, which decries payments between brand-name and generic companies as being anti-competitive, is dodgy, shrill and oh-so wrong.

“The FTC has taken an extremist approach that ignores practical concerns and realities,” says Laurie Webb Daniel of Holland & Knight, who reps Schering-Plough, in an interesting look at the problem in The National Law Journal.

A proposed Senate bill to limit patent payoffs is an attempt to devise an overly simple solution to a complicated problem, says Jim Burling, who co-chairs the antitrust and competition department at Wilmer Cutler Pickering Hale and Dorr and reps brand-name drugmakers. And banning settlements could discourage generic makers from filing abbreviated ANDAs.

“If one of the leading ways of settling these cases were not available, generics might not think [litigation] was worth the expense,” he says. “We could well have fewer patent challenges if this kind of law would pass.”

Both types of drug companies have discovered they’re better off as partners in a monopoly than as competitors, said Patrick Cafferty of Cafferty Faucher, who represented consumer groups and third-party payors that claimed a deal over Tamoxifen was anti-competitive. They lost.

“I don’t know how a generic company could turn down (these settlement) offers,” Caffery wonders aloud. “They can make more money by protecting a monopoly than they can by competing. The only ones that lost are the people who have to foot the bill for the drug.”

Meanwhile, FTC commish Jon Leibowitz, who supports legislative action, is hunting for new cases and hopes to split the circuit courts, forcing a Supreme Court ruling on the matter. But that could take years.

And the rest of us? Don’t get sick, or become a patent attorney. They can afford their meds.

[tags]Federal Trade Commission, Generics, Patents[/tags]