When a generics company challenges an innovator-patentee’s patent, the most likely outcome is that the innovator either litigates or forms a settlement with the generics company. However, in the latter case it is vital that the settlement is not deemed to be anticompetitive: a charge that focuses on settlements involving reverse payments.
Features and benefits
- Analysis of success drivers and resistors of patent defense/litigation as a lifecycle management strategy.
- Discussion of the importance of different types of patents and how they contribute to the patent estate .
- Case study of recent successful and unsuccessful patent defense/litigation strategies.
The European system is highly fragmented, since a pharmaceutical company has to obtain a European patent and then validate it in the member states or obtain national patents. As a result, if an innovator-patentee company challenges a generic, litigating is both expensive (because of the number of states) and unpredictable.
The patentee-innovator company has a higher chance of a favorable outcome in litigation compared to forming settlements, and therefore it is frequently used. However, there is also support from both innovator-patentee companies and generics to form settlements, the use of which has risen over the last decade
European competition authorities are cracking down on reverse payment settlements and Europe looks set to be tougher for such settlements than the US in the future.
Your key questions answered
- Which outcome of a patent challenge is likely to be more beneficial to innovator-patentees and which to generics?
- What advantages does litigation have, compared to forming settlements?
- How important are different patent types in building a patent estate?
- What are the risks with entering into settlements compared to the risks with litigating?