Looks like the Congress may indeed need to pass the Preserve Access to Affordable Generic Drugs Act if it wants "pay for delay" tactics to stop. The Federal Appeals court today declined to change its April ruling that pay for delay settlements were legal.
A group of direct and indirect drug purchasers, CVS Caremark and Rite Aid, had filed the suit in relation to a Bayer paying Barr Pharmaceuticals to drop a patent challenge against Bayer's drug Cipro. The next step for the plaintiffs would be to take their appeal to the Supreme Court - which too may or may not choose to hear the case.
The ruling is in opposition to the intent of the Senate Committee voting for its bill. The US FTC has voiced its opposition to pay for delay settlements, and recently has been joined by the Department of Justice which has said these agreements should be presumed unlawful. See WSJ article.
In the meantime, pay for delay will stay.
Posted by Bruce Lehr September 7th 2010.