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Citation Number
05-2851 & 05-2852

An amicus brief in support of plaintiffs-appellants’ petition for rehearing en banc. The case concerns a court of appeals panel decision upholding the dismissal of an antitrust challenge to a Hatch-Waxman patent settlement. Because of the “exceptional importance” of the issues involved, however, the panel also invited appellants to file a petition for rehearing en banc, in order for the full court to reconsider a circuit precedent that bound the panel’s decision. The Commission argues that the earlier circuit decision, In re Tamoxifen Citrate Antitrust Litig., 466 F.3d 187 (2d Cir. 2005), was based on mistaken assumptions about the pharmaceutical industry, which has contributed to a proliferation of exclusion-payment settlements such as the one at issue in the current case, and that the Tamoxifen panel decision did not properly consider the Hatch-Waxman Act, which encourages challenges to pharmaceutical patents to facilitate the early entry of generic drugs. The Commission urges the court of appeals to rehear the current case en banc, in order to correct that earlier circuit precedent.