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Patent litigation in the pharmaceutical industry impacts billions of dollars in pharmaceutical sales annually. Cases often involve a brand name drug manufacturer seeking to stop a competitor from selling a generic version of the brand name’s drug. In some cases, the parties reach a settlement that includes a delay in the generic entry date and some monetary consideration from the brand name manufacturer. Detractors of such settlements call them “pay-for-delay” or “reverse payment” settlements because consideration flows from the patent holder to the alleged infringer (whereas in other IP litigation settlements the payment typically goes in the other direction). Supporters of these settlements contend, however, that as long as the brand name manufacturer’s patents are valid and being infringed, a settlement agreement restricting the entry date for the generic drug does not have any impact on lawful competition.

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