T. Alexander Puutio (United Nations), “Size matters: Justifying sizeable reverse payments in patent disputes”
Scholars of pharmaceutical patent law are increasingly finding themselves sharing both academic interests and lively discussions with an unfamiliar type of interlocutor in the realm of judicial analysis namely economists and competition policy specialists. While the arguments on all sides of the table have undoubtedly been rejuvenated by the fruitful cross scientific discourse, a wealth of issues where ostensibly perpetual chasms of divergent views exist have also been revealed. This article deals with reverse payments in patent settlements: a subject which has earned the attention of some of the brightest judicial and economic minds alive today, and as a consequence, has inspired fascinating developments in both jurisprudence and economic thinking. This paper will critically assess the recent jurisprudence concerning the size of reverse payments, the main tests for assessing the acceptability of such arrangements and the probabilistic nature of patent disputes in general.