The Recorder reports on Professor Mark Lemley's arguments before the California Supreme Court to stop pharmeceutical companies from paying to keep generic drugs off the market. 

The California Supreme Court heard arguments Tuesday in a case that could give the pharmaceutical industry more guidance on the legality of so-called “pay-for-delay” agreements.

A class of consumers alleges that Bayer Corp. illegally paid several generic drugmakers nearly $400 million to postpone plans to release generic versions of the antibiotic Cipro. Plaintiffs lawyers led on appeal by Stanford Law School professor and Durie Tangri partner Mark Lemley are asking the state's high court to be the first in the nation to find such a settlement illegal under state and federal antitrust law.

“With a payment that size, what they're paying for is insulation from competition,” Lemley said, arguing Bayer had no other justification for the deal, not even avoiding litigation costs.

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Lemley warned the state's high court, which does not normally hear patent challenges, against conducting “a trial within a trial.” The motivation for the megapayout was obviously to avoid competition, he maintained. “They are clearly paying to avoid the possibility that their patent will be invalidated.”