No Reprieve for Pharma as Third Circuit Refuses to Stay K-Dur Anti Pay-for-Delay Ruling

Drugmakers operating in the Third Circuit Court of Appeals jurisdiction will need to remain cautious about engaging in reverse patent settlements as the court refused to put on hold its recent ruling that such deals are anticompetitive while Merck and Upsher-Smith appeal to the Supreme Court. The decision to maintain the July ruling that found reverse patent settlements, also known as “pay-for-delay” deals, violate antitrust law was another setback for Merck and generic-drug maker Upsher-Smith in the companies’ multimillion-dollar deal to postpone the launch of a generic of Schering Plough’s potassium deficiency drug K-Dur 20 (potassium chloride).
Drug Industry Daily