Reverse Payment Settlements

Restraint of Trade or Legitimate Contract? Unraveling the FTC, DOJ and Federal Court Conflict

Recording of a 90-minute CLE webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Thursday, March 8, 2007

Course Materials


Reverse payments refer to a patent owner's agreement to pay an infringer to settle patent litigation – but there is no clear standard of review for analyzing the legality of utilizing reverse payment agreements.

The FTC's position is that such payments violate the Sherman Act, but the Eleventh Circuit ruled in Schering-Plough v. FTC that it is within patent owners' rights to utilize such agreements.

In an unprecedented move, the Antitrust Division of the Department of Justice opposed the FTC's certiorari petition in Schering-Plough, and the Supreme Court declined to review. Congress is currently considering a measure to make such settlements per se illegal.

The conflicting positions presented by the FTC and the DOJ, as well as the courts, have left companies and their counsel without clear guidance.

Listen as our authoritative panel advises patent owners and alleged infringers on what to consider before participating in such settlements.



The panel will review these and other key questions:

  • How have the courts and agencies applied antitrust law to patent disputes?
  • What are the lessons for patent owners from the differing FTC, DOJ and federal court approaches to reverse payment settlements?
  • What are the best practices for patent owners and alleged infringers in negotiating settlements of claims in the current legal environment?


Michael A. O'Shea
Michael A. O'Shea
Akin Gump Strauss Hauer & Feld

He focuses on patent litigation and licensing. He has litigated numerous patent cases in virtually every technology and...  |  Read More

Kevin McDonald
Kevin McDonald
Jones Day

He specializes in antitrust litigation and has substantial trial experience in the areas of bankruptcy, corporate...  |  Read More

Susan Creighton
Susan Creighton
Wilson Sonsini Goodrich & Rosati

He focuses on antitrust counseling and litigation. Prior to rejoining the firm, she served as director of the...  |  Read More