Don't Fear IP-Antitrust 'Turducken' in Reverse-Payment Cases

This article discusses whether apprehension associated with applying a "Turducken" analysis (the word "Turducken," which was penned by former American football coach and sportscaster John Madden, referring to a chicken stuffed inside a duck stuffed inside a turkey), or a patent case inside an antitrust case, to reverse-payment antitrust actions is warranted. The article analyzes whether it is fair to hold a generic pharmaceutical company liable for antitrust damages based on a surrogate proof of patent weakness based on the existence of a reverse payment, instead of requiring a private plaintiff to prove the patent merits directly. According to the authors, the 2013 US Supreme Court case of Federal Trade Commission v. Actavis Inc. does not require bypassing direct proof of the patent merits to determine antitrust injury in private actions.