A Comparative Analysis of the Legal Framework and Case Law on Reverse Payment Settlement Agreement in the United States and South Korea

Kim, Sung San | January 1, 2015

In 2013, the U.S. Supreme Court issued a landmark decision, FTC v.

Actavis, in which it ordered the lower courts to apply the rule of reason to

“reverse payment settlement agreements.” As the leading jurisdiction for

antitrust and intellectual property laws, the United States is once again poised

to influence foreign jurisdictions on the issue of reverse payment settlement

agreements. In this context, South Korea presents a ripe opportunity for a

comparative study because it recently adopted a patent-approval linkage system

under which reverse payment settlement agreements will likely become a

contentious issue. In particular, the South Korean Supreme Court’s recent case,

GlaxoSmithKline v. Korea Fair Trade Commission, offers valuable insight into

how Korean courts will likely approach this issue. This Comment contends that

the U.S. case law, including Actavis, offers important insights for the Korean

legal community and that Korea’s experiment has potential to offering a fresh

approach in tackling reverse payment settlement agreements.