Applying Antitrust Law to Reverse Payments about Drug Patent in the United States

Reverse payments mainly appear in drug patent field of United States. It means that a patentee pays large amounts of money to a generic drug applicant, also in most cases an accused infringer, so that the accused infringer stay out of the drug market. The Circuit Appeal Courts of United States have three attitudes on applying antitrust law to reverse payment: the first is applying strict per se rule, the second is the scope of the patent test which exempts the antitrust responsibility of reverse payment, and the third is applying rule of reason. Recently, the Supreme Court of United States declared its attitude on this problem which called for the application of the rule of reason. In view of the reverse payment antitrust cases in America as references, we should consider the factors of stimulating innovation, competition order and humanitarianism when we formulate relevant laws and rules.