High court asks Bush admin. view on tamoxifen case

By Peter Kaplan

WASHINGTON, March 19 (Reuters) - The U.S. Supreme Court asked the Bush administration on Monday to give its opinion on whether the court should review a case challenging patent settlements between major drugmakers and their generic rivals.

The high court made no decision about whether it ultimately would hear the appeal, which centers on a lawsuit challenging a settlement deal between Barr Pharmaceuticals Inc. BRL.N and AstraZeneca (AZN.L) involving the cancer drug tamoxifen.

Instead, the justices asked Solicitor General Paul Clement of the Justice Department to file a brief outlining the administration's position.

The case is being closely watched because similar drug patent settlements between major drug makers and their generic rivals have come under the scrutiny of U.S. antitrust authorities and some lawmakers in Congress.

The Federal Trade Commission filed several lawsuits in recent years, arguing that in some cases such settlements are anticompetitive because drugmakers are paying generics to stay out of the market.

However, courts have ruled against the FTC in several major cases, emboldening brand-name drug makers to strike more deals with generic rivals during the past two years.

Last year, the U.S. Supreme Court declined to hear an appeal of a case in which the FTC charged that Schering-Plough Corp. SGP.N illegally kept cheaper versions of its blood pressure drug K-Dur off the market through patent settlements with generic competitors.

In that case, the Supreme Court also sought the solicitor general's views on whether to review it and later took his advice not to hear the appeal.

Under federal law, drugmakers are allowed to seek U.S. Food and Drug Administration approval for generic versions of brand-name drugs before a drug's patent expires. They must certify that the patent is invalid or will not be infringed by the new generic version.

Generic drugs are typically cheaper for consumers to buy than brand-name drugs.

Democrats on the Senate Judiciary Committee recently introduced a bill that would stop drug makers from striking deals to restrict the introduction of cheaper generic drugs. Some Republicans are trying to modify the legislation to allow federal courts decide which patent settlements are anti-competitive.

((Reporting by Peter Kaplan, editing by Tim Dobbyn; Reuters Messaging: peter.kaplan.reuters.com@reuters.net; email: peter.kaplan@reuters.com; +1 202 898 8463, fax: +1 202 898 8383)) Keywords: BARR COURT/

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