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clinical testing and obtain regulatory approval;180 and technical transfer assistance.181
H. Intellectual Property
Intellectual property (“IP”) provisions took many forms, likely associated with the FTC’s concern over pay-for-delay settlement agreements and other tactics viewed as anticompetitive. Those framed as prohibitions included prohibiting a party from accepting payments or entering into pay-for-delay agreements182 and prohibiting the merged company from acquiring exclusive rights in certain IP and technology related to certain product areas and technology.183 Beyond prohibitions, many of the consent orders required the relinquishment, assignment, licensing, grant, and renegotiations of IP.184 One required the licensing of rights to manufacture and market the authorized generic version of the drug divested to a third party.185 Another required the license of certain patents to a third party that block the ability to market in U.S.186 Others required the assignment of all relevant intellectual property rights;187 the relinquishment of reversionary rights;188 the grant of an irrevocable worldwide license to rights and patents jointly owned;189 the grant
Actavis, FED. TRADE COMM’N (Oct. 15, 2012), https://www.ftc.gov/news-events/press- releases/2012/10/ftc-places-conditions-watson-pharmaceuticals-proposed-acquisition (“Watson and Actavis must maintain the viability of the drugs until they are transferred to the FTC-approved buyer.”). 180. See FTC ANTITRUST ACTIONS, supra note 62, at 8 (“[T]he order requires Schering and Merck to provide transitional services to enable Opko to complete clinical testing and obtain regulatory approval to market Rolapitant in the U.S.”). 181. See id. at 38 (“The order also requires that Sun provide transitional services including help obtaining necessary FDA approvals and technical transfer assistance.”). 182. See id. at 32 (“To preserve competition in the testosterone gel market, the order prohibits Perrigo . . . from entering into any ‘pay-for-delay’ arrangements with Abbott.”). 183. See id. at 62 (“[T]he merged company could not acquire exclusive rights in certain intellectual property and technology related to chemoresistance gene therapy.”). 184. See generally FTC ANTITRUST ACTIONS, supra note 62. 185. See id. at 29 (“The order required Valeant . . . to license to Mylan the rights to manufacture and market the authorized general version of Efudex.”). 186. See id. at 48 (“The order requires that Amgen license certain patents to Sereno, a Swiss company developing a TNF inhibitor for use in Europe, that block Sereno’s ability to market in the U.S.”). 187. See id. at 50 (“The order required Glaxo to assign all of its relevant intellectual property rights and relinquish all of Glaxo’s reversionary rights to GI147211C to Gilead Sciences.”). 188. See id. (“The order required Glaxo to . . . relinquish all of Glaxo’s reversionary rights to GI147211C to Gilead Sciences.”). 189. See id. at 51 (“The order required Pfizer to return its EGFr-tk inhibitor, CP-358,774, along with its technology and knowhow assets to its development partner OSI, to grant OSI an irrevocable worldwide license to its rights and patents jointly owned with Pfizer . . . .”).