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Vedder Thinking | News Vedder Price Participates in U.S. Supreme Court Amicus Brief on "Pay-for-Delay" Settlements

Press Release

Thomas J. Kowalski, a Shareholder in the New York office of Vedder Price and a member of the firm's Intellectual Property group, contributed to the September 24, 2012 amicus curiae brief filed with the United States Supreme Court by the New York Intellectual Property Law Association (NYIPLA). Mr. Kowalski also serves as one of the counsel to the NYIPLA in the matter, as a member of the NYIPLA Committee on Amicus Briefs.

In Merck & Co., Inc. v. Louisiana Wholesale Drug Company, Inc., et al., the NYIPLA filed an amicus curiae brief in support of both petitioners, seeking grant of certiorari by the United States Supreme Court. At issue is a decision by the U.S. Federal Court of Appeals for the Third Circuit that a settlement of Hatch-Waxman litigation that included payment by the branded drug patent holder to the generic drug company (a so-called "pay-for-delay" settlement by the U.S. government) is illegal per se under the antitrust laws. The petitions for certiorari and the NYIPLA amicus curiae brief ask the High Court to hear the case so as to reconcile the Third Circuit decision with the rule of reason analyses applied to such settlements by other U.S. Federal Circuit Courts of Appeal, including the recent Eleventh Circuit "Androgel" case of FTC v. Watson Pharms, Inc. et al., in which the FTC lost and has announced it will petition for certiorari by the United States Supreme Court.

Please contact Mr. Kowalski for more information on this matter or any other intellectual property issues.

Download the complete amicus brief by clicking the link below.


Thomas J. Kowalski