Economic Analysis of Pay-for-delay Settlements and Their Legal Ruling

Linda Gratz

Discussion Papers in Economics from University of Munich, Department of Economics

Abstract: In this paper, we ask whether courts should continue to rule settlements in the context of pharmaceutical claims per se legal, when these settlements comprise payments from originator to generic companies, potentially delaying generic entry compared to the underlying litigation. Within a theoretical framework we compare consumer welfare under the rule of per se legality with that under alternative standards. We find that the rule of per se legality induces maximal collusion among settling companies. In comparison, the rule of per se illegality entirely prevents collusion and the rule of reason induces limited collusion when antitrust enforcement is subject to error. Contrary to intuition, limited collusion can be welfare enhancing as it increases companies' expected settlement profits and thus fosters generic entry. Generic companies obtain additional incentives to challenge probabilistic patents, which potentially leads to overall increased competition. We further show that generic entry is fostered more effectively by inducing limited collusion than by rewarding first generic entrants with an exclusivity right.

Keywords: antitrust and intellectual property law; patent settlements; collusion; per se rule; rule of reason; Hatch-Waxman Act (search for similar items in EconPapers)
JEL-codes: I18 K40 L40 O34 (search for similar items in EconPapers)
Date: 2012-02
New Economics Papers: this item is included in nep-com, nep-ipr, nep-pr~ and nep-law
References: View references in EconPapers View complete reference list from CitEc
Citations: View citations in EconPapers (8)

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Persistent link: https://EconPapers.repec.org/RePEc:lmu:muenec:12734

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