The Competition Question Unasked in Actavis: What is the Scope of the Patent Right to Exclude?

In FTC V. ACTAVIS, Inc. the Supreme Court recently concluded that patents will no longer serve as trump cards for defendants in antitrust suits contesting pay-for-delay settlements.1 The Court instructed that liability should be determined by applying a rule of reason to accommodate patent rights to antitrust proscriptions—over a vigorous dissent that would have treat- ed patents as trumps. Although the decision reflects a Court deeply divided over antitrust issues, what is perhaps more significant about the decision is the Court’s seemingly unremarkable consensus that the patent regime is defined by a right to exclude others from practicing the patent. That consensus, however, ignores the competition policy inhering in patent law and conflates the concepts of patent scope and patent remedies. Patent law’s indigenous competition policy not only clarifies the relationship between patent scope and patent remedies but warrants wider recognition in public policy analysis of the patent regime.