A typical reverse payment settlement involves monetary payments by a manufacturer of a branded drug to a generic manufacturer in consideration for the generic brand to agree not to challenge the validity of the patent at issue.  They are referred to as “reverse payments” because the payments are made by the patentee to the alleged infringer.

 This type of settlement has been very controversial.  However, many federal appellate circuits as well as the Department of Justice under President Bush, have upheld the practice. However, as of Monday, it appears that the Justice Department under President Obama may be switching allegiances in the battle against reverse settlements. Pursuant to the request of the Second Circuit Court of Appeals, the Justice Department filed a brief regarding the challenge by drug purchasers to a settlement between Bayer AG and Barr Pharmaceuticals to keep a generic version of Cipro off of the market. (A copy of the brief can be found here.)

In this brief, the Justice Department stated that “The anticompetitive potential of reverse payments…is sufficiently clear that such agreements should be treated as presumptively unlawful under Section 1 of the Sherman Act.” However, the Department also stated that the presumption may be rebutted by a showing that the payments do not in fact harm competition.

The Justice Department’s brings it more in line with the Federal Trade Commission, which has consistently opposed reverse settlement deals.  

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It’s been an honor and a pleasure to work on the Law, Science, and Technology blog over the past months. Unfortunately, my time as a law student has come to an end, and so I will be retiring from the editor position. I would like to thank the Gibbons Institute for support of the program here at Seton Hall Law, and Professor David Opderbeck for his sharp eye and assistance in starting this blog and helping keep its momentum.

The neighborhood board on the island of Oahu in Hawaii held the United States’ first all-digital election. Voters used either the telephone or computer to place their votes, and the government managed the entire system digitally, without any paper ballots. Because of the lack of required space, voting booths, poll workers, and so forth, the city government was able to save upwards of 95,000 off their budget to administer the election. However, the convenience did not seem to pass on to the voters, as about 7,300 people voted in the election, compared to 44,000 in 2007. It remains to be seen whether it was a question of an unwieldly interface, if the digital-only election appeared to diminish its importance, or if it’s simply too soon to adopt such technology for universal civic use. No doubt that future attempts at internet voting will investigate what happened in Hawaii very closely.

The use of dogs to detect various kinds of contraband is well established. Apparently, dogs can be trained to have a nose for movies instead of more unsavory hobbies. A trained dog in Malaysia named “Paddy” discovered a shipment of 35,000 pirated DVDs before they could be shipped out of of the country. The disks included copies of films now in theaters, such as the newest “Terminator” film. The dog, specially trained to smell the ink used to make pirate DVDs, prevented the disks from reaching their intended destination in Singapore.

Sonia Sotomayor has been announced for some time now as Obama’s next nominee to the Supreme Court, replacing the retiring Justice Souter. While Judge Sotomayor is currently going through the intense scrutiny that all justices face before being confirmed, It is interesting to note that she has a significant background in Intellectual Property and Internet Law. A few highlights:

-During her time in private practice at New York firm Pavia & Harcourt, she specialized in intellectual property law as both an associate and a partner. Her primary focus was assisting Italian company Fendi in stopping distribution of knock-offs of their products.

-in 2001, Sotormayor’s opinion in Tasini v. New York Times was overturned on review by the Supreme Court. In Tasini, freelancers had sued the New York Times and Lexis-Nexis for the unauthorized and unnotified inclusion of their articles in periodicals databases, claiming that that they had a seperate property right in the new compilation. Sotormayor ruled in favor of the publishers- the Supreme Court sided with the freelancers in a 7-2 decision, with Breyer and Stevens dissenting.

-In 2002, Sotomayor wrote a since-narrowed opinion for the second circuit in Specht v. Netscape Communications Corp, which was a rare decision against click-through EULAs. A number of users had sued Netscape for a tracking cookie in one of their early search plugins, which they had agreed to through a pre-install EULA with a long scroll bar. She 2nd Circuit canceled both the EULA and the mandatory arbitration clause as unreasonable, allowing the lawsuit to continue independently.

The Attorney General of South Carolina, Henry McMaster, recently targeted online message board service Craigslist in response to recent cases such as the killings by Boston-area student Philip Markoff dubbed the “Craiglist Killer”. Most of the scandal came from the now-removed Erotic Services section, which has been accused of being a repository for people who use the service for prostitution, in violation of the site’s terms of service. McMaster demanded in an open letter that Craigslist remove the sections of the site containing “categories for and functions allowing for the solicitation of prostitution”, or for the distribution of pornography, by May 15th, or face criminal prosecution. In response, Craigslist has filed suit in South Carolina court, seeing a declaratory judgment and restraining order against South Carolina. Myspace claims both Section 230 immunity under the Communications Decency act as a service provider, and further asserts that the only way to comply with McMaster’s demand would be to shut down access to the site entirely within South Carolina. Craigslist has now recieved a temporary restraining order preventing charges from being filed until the current case is resolved.