Decision on Tamoxifen Cert Petition Expected Soon

According to this article in today's Legal Times, the Supreme Court may decide as early as next Monday whether or not to grant certiorari in In Re: Tamoxifen Citrate Antitrust Litigation, the latest "reverse payment" settlement case to be presented to the Court.

In the case, patients, health insurance companies, and consumer advocacy groups are challenging the legality of a patent litigation settlement that included a $21 million payment from AstraZeneca to Barr Labs and an agreement by Barr to delay marketing its generic tamoxifen product until Astra's patent expired.  Tamoxifen, a treatment for breast cancer, is the most widely prescribed cancer drug in the world.

Last year, the Court denied certiorari in a similar case, FTC v. Schering.  There, the Court asked for the views of the Solicitor General, who recommended denying cert.  At the time, the Solicitor General suggested that the Tamoxifen case might present a better vehicle for addressing the issue of reverse payment settlements.  The Court has not yet asked the Solicitor General to submit an amicus brief in Tamoxifen, but that remains a possibility.

Links to the petition stage briefs are provided below.  Thanks very much to everyone who sent me copies of the briefs.

BRIEFS:

• Petition for Certiorari
• Brief in Opposition, filed by Respondents Barr Labs and AstraZeneca
• Petitioners' Reply Brief
• Amicus Brief of American Antitrust Institute, in support of petition
• Amicus Brief of Economics, Business and Law Professors, in support of petition
• Amicus Brief of Nat'l Assoc. of Chain Drug Stores, in support of petition

RELATED READING:

• New SSRN paper by Prof. Scott Hemphill: "Drug Patent Settlements Between Rivals: A Survey"
• Recent NLJ article on reverse payment settlements
• Earlier OBB posts: 12/17/06; 9/19/06; 6/19/06

UPDATES:

• On March 18, the Supreme Court asked the Solicitor General to file an amicus brief setting forth the Government's position on the case.  Thus, the Court may not decide until Fall whether or not to take this case.  Patently-O has more.