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Academic Articles Awards > Intellectual Property

Deactivating Actavis: The Clash between the Supreme Court and (Some) Lower Courts

Joshua P. Davis and Ryan J. McEwan, Univ. of San Francisco Law Research Paper No. 2015-13

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Numerous trial courts have misinterpreted the Supreme Court’s recent decision in FTC v. Actavis, Inc. An interesting question is why they have done so. Perhaps lower courts disagree with the Supreme Court about so-called “reverse payment” cases, the subject of the Actavis opinion. Or perhaps they simply have made random mistakes, as is perhaps inevitable, particularly in a challenging area of the law like antitrust. This Article suggests an alternative account: that lower courts are seeking clear guidance from Actavis, clear guidance that the Supreme Court has not tended to provide in antitrust cases in general and that it did not provide in Actavis in particular. This Article attempts to correct the ensuing confusion, and concludes with a modest suggestion about how the Supreme Court could minimize these sorts of difficulties in the future.

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