Kristopher L. Reed, A Return to Reason: Antitrust Treatment of Pharmaceutical Settlements Under the Hatch-Waxman Act, 40 Gonz. L. Rev. 457 (2005).
Intellectual property rights (“IP”) confer upon the possessor the “right to exclude.” Not surprisingly, interesting questions arise when intellectual property rights are subjected to the scrutiny of antitrust law analysis. Among these questions are the issues raised during the settlement of intellectual property lawsuits between competitors. In the context of pharmaceutical patent settlements, a ripe conflict has arisen among academics and different courts as to the correct application of antitrust principles in light of various intellectual property concerns. A per se antitrust rule should not apply, as such a standard does not adequately take into consideration the rights of the patent holder. A slightly less stringent rule of reason approach is recommended, which requires a large, yet not impossible, burden be met by the patentee in order to avoid condemnation under antitrust law.