Reverse-Payment Settlements Under EU and US Patent Law: Convergence in Remedies.

This article examines the legal treatment of reverse-payment settlements—agreements in which patent holders pay generic manufacturers to delay market entry—in both the European Union (EU) and the United States (US), highlighting the interplay between patent law and antitrust enforcement. In the EU, landmark cases such as Lundbeck, Servier, and Generics (UK) illustrate a shift from quick-look or scope-of-the-patent tests toward more nuanced antitrust analyses that consider actual competitive effects and incorporate Article 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). Conversely, US jurisprudence evolved from per se illegality and scope-of-the-patent tests to the Supreme Court’s rule-of-reason approach in FTC v. Actavis, which rejects absolute presumptions based on patent validity but integrates patent-related proxies as auxiliary factors. However, subsequent US cases have seen a resurgence of quick-look scrutiny and increased reliance on patent law doctrines such as inequitable conduct and Walker Process fraud to address complex exclusionary strategies involving reverse payments. The article concludes that while both jurisdictions aim to balance patent policy and competition law, the growing complexity of settlements has blurred the boundaries between antitrust benchmarks and patent law proxies, creating legal uncertainty and challenges in consistently applying remedies.