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Restricting patent settlements would dissuade generic drugmakers from challenging patents, result in protracted litigation when challenges are made and produce higher prices for consumers and the federal government by excluding generic competition before patent terms end. The proposal is also an inappropriate restriction on the presumptive constitutional right of parties to decide whether to litigate or settle cases without undue government interference.
The two of us often have somewhat divergent views about the proper role of the government in the marketplace and the power of Congress under the Constitution to perform that role. But we share a strong belief that the constitutional guarantee of due process of law encompasses the fundamental interest of parties in being able to resolve their differences through settlement rather than litigation.
The long-standing public policy in favor of permitting and encouraging settlements is a wise one. The policy in favor of settlements should be respected, save for those limited circumstances where government demonstrates a compelling reasoning for preventing the parties from reaching a mutually acceptable settlement agreement. This is not one of those situations.
Paul Bender is a professor of law and former dean at the Sandra Day O’Connor School of Law at Arizona State University. He was principal deputy solicitor general of the United States, 1993-1996. He is of counsel to the law firm of Meyer, Klipper & Mohr PLLC. Bruce Fein was associate deputy attorney general of the United States, 1981-1983, and special assistant to the assistant attorney general for antitrust, 1975-1976, and serves as president of Bruce Fein & Associates Inc.