Continued uncertainty on patent settlements
So the Supreme Court denied cert in Schering. Playing off the World Cup theme we’ve had going, several scorecards to tally here.
Solicitor General: 2; FTC: 0. The SG had recommended denial of cert in a case that the FTC desperately wanted to go upstairs after the spanking they got in the 11th Circuit. Always interesting to see one “branch” of the federal government tell the Supreme Court to deny another “branch’s” appeal. (I use “branch” advisedly since they really should be part of the same branch of government).
Pharma: 1; Plaintiffs’ bar: 1. You might think denial of cert represents a victory for pharma, but it just extends the uncertainty over private antitrust actions based on patent settlements and leaves in tact bad law for the pharma companies, like the Sixth Circuit’s Cardizem decision.
Consumers: 0; Defense bar: 5. As usual, consumers get hosed at the expense of . . . . yes, defense lawyers who will continue to rack up huge legal fees defending these cases and love every minute of the current morass in the legal standard. (As a sometime defense lawyer, I should point out that this is not the fault of the defense lawyers, just a happy consequence of being one: if your side wins, you look like a genius; if your side loses, you get to make even more money litigating).
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