Beyond hatch-waxman

In its 2013 FTC v. Actavis decision,1 the Supreme Court resolved a circuit split on the proper standard for antitrust review of reverse payment settlements. While the resolution boils down to three words, "rule of reason," the Court's extensive analysis and the dissenters' vigorous resistance suggest that something deeper might be at stake. This Article addresses the question of how broadly we should read the majority opinion. Does it apply only to the particular settlement agreement at issue, or has Justice Breyer's opinion shifted the relationship between antitrust and patent law (and perhaps intellectual property law) beyond the Hatch-Waxman context? Common law evolves gradually through narrow applications of judicial holdings to new fact patterns.2 Pushing against the recommendation to read narrowly is the understanding that the implication of a decision extends beyond the particular facts of the case. While a court can limit its ruling to the particular facts and yield a narrow holding, Justice Breyer's opinion in Actavis does not contain such narrowing qualifications. At the same time, the particular holding appears, on its surface, to suggest that reverse payment settlements of the kind that Actavis entered into would be subject to antitrust scrutiny under the rule of reason.3 Perhaps the analysis ends there.