Pittsburgh Intellectual Property Attorney Craig Cochenour Quoted on Reverse-Payment Settlements in The Legal Intelligencer Article

Craig G. Cochenour — a shareholder in the Intellectual Property Section of Buchanan Ingersoll & Rooney's Pittsburgh office and chair of the firm's Pharmaceutical Industry group — was quoted in a June 22, 2010, article published by The Legal Intelligencer. The article, titled "Brand, Generic Drug Makers Dispute FTC Stance," examined reverse-payment settlements in pharmaceutical patent litigation.

As explained in the article, "Brand and generic pharmaceutical companies don't often play in the same sandbox willingly. Law firms have had to make considerable business decisions on which side they would represent. And brand and generic companies are often on opposite sides of the 'v' when it comes to patent litigation. But lawyers on both sides are in agreement, and brand and some generic companies have joined forces, over a common goal of protecting what they view as an important way of doing business — reverse payment settlements, also known as 'pay-for-delay' deals."

The article went on to note, "At the same time, the U.S. Federal Trade Commission, which has taken a strong stand against the deals, is riding a wave of what it sees as positive court decisions and potential support in Congress to do away with the settlements."

Cochenour, who is a registered pharmacist, said the industry could be reaching a turning point. Up to this point, he said, both generics and brand companies have adjusted their business models and legal strategies to include these settlements.

"From a pharmacist and patent attorney perspective, I think these reverse payments have basically accommodated both sides and have kept the patent law intact," Cochenour said.

As noted in the article, Cochenour "said the tide could be turning, however, under the new administration. Under President George W. Bush's watch, the U.S. Department of Justice never opposed the settlements while the FTC always had. Now, he said, the FTC and the DOJ under President Obama's administration are more aligned. That may cause the courts to give a little more weight to the facts of these cases."

"All of the cases where the settlements were upheld turned on how the agreements were structured," Cochenour said.