As early as Monday, the court may decide whether to look at a long-running and closely watched dispute over a $21 million patent settlement between AstraZeneca and Barr. The case consolidates some 30 lawsuits filed by consumers and their insurers on anti-trust grounds. The deal included an agreement by Barr to delay marketing a generic version of AstraZeneca’s widely prescribed Tamoxifen breast cancer treatment.

During its last term, the court declined a request by the Federal Trade Commission to review the same issue in a case involving Schering-Plough. As a story in Legal Times points out, in that case, the US solicitor general filed a brief at the court’s invitation and recommended denying a review, saying the case was a poor vehicle for examining antitrust issues involved. In this latest case, neither the FTC nor the Justice Department has weighed in.

For these reasons, this case now promises to be even more closely watched by drugmakers, government agencies and legal experts. Drug companies argue these deals make sense because expensive litigation may discourage generic makers. But there’s too much controversy over exploiting the Hatch-Waxman Act. Given that such deals delay availability of low-cost medicines, a Supreme Court review is warranted and even necessary.

Further reading…
Brief seeking review;
Opposition brief by the two drugmakers;
Amicus brief supporting consumers filed by 41 law professors;
Amicus brief supporting consumers filed by drug-store chain trade group;
The National Law Journal on the patent settlement debate.

A hat tip to the Orange Book Blog for the alert.[tags]AstraZeneca, Barr Pharmaceuticals, Generics, Patents[/tags]