January 4, 2007

Plaintiffs are asking the Supreme Court to review the dismissal of a case to determine the legality of reverse payment agreements, where brand drugmakers pay generic rivals to keep their low-cost versions of prescription products off the market.

Consumers, third party payers and a healthcare advocacy group filed for writ of certiorari asking the Supreme Court to review a decision supporting the dismissal of an antitrust case between AstraZeneca and Barr Pharmaceuticals.

The case claims antitrust violations based on the nearly $57 million AstraZeneca gave Barr and its supplier to abandon its challenge of AstraZeneca's patent on breast cancer treatment tamoxifen.

The petition asks the court to define when a deal in which a brand drug manufacturer with a patent shares part of its profits with a generic competitor in exchange for the competitor's agreement not to market its products is a violation of antitrust laws.

Earlier this year, the Supreme Court turned away a similar reverse payments case, FTC v. Shering-Plough, after the Department of Justice (DOJ) advised the court not to hear it. In response to the court's decision, a bipartisan group of senators announced it had introduced legislation to ban reverse payments.

The new petition acknowledges that its reverse payment issue is the same as in the FTC v. Shering-Plough case, but says the tamoxifen case lacks complications that caused the DOJ's opposition.