Category: Antitrust and Unfair Competition Law Category: Antitrust and Unfair Competition Law (show less)

An unlitigated patent is a bit like Schrödinger’s cat: until challenged and adjudicated, the patent arguably appears as though it is both valid and invalid. This ambiguity has led certain courts and legal scholars to observe that, at the time a reverse payment settlement is executed, the brand pharmaceutical company really owns a “probabilistic patent” that may or may not give it the right to exclude competition. In the context of private antitrust litigation involving reverse payment settlements, patent ambiguity has tempted some to substitute proxies or presumptions for actual proof of proximate cause. That will not do.