Some 'Activist' Judges Wear Republican Robes

[Kingshakabobo]

Don't know if this has been posted yet......

Some 'Activist' Judges Wear Republican Robes

http://www.washingtonpost.com/wp-dyn/content/article/2005/08/23/AR2005082301587.html?referrer=email

By Steven Pearlstein

Wednesday, August 24, 2005; Page D01

One of the biggest con games these days is the Republican attack on the courts. You know the rap: "activist judges" who exceed their authority, ignore the plain language of statute and the Constitution and run roughshod over the elected branches of government.

These days, however, it is the supposedly conservative, Republican judges who are the power-grabbing, results-driven activists. And there is no better illustration than a dunderhead decision recently handed down by the U.S. Court of Appeals in Atlanta that disregards the express intent of Congress, ignores the extensive fact-finding of the Federal Trade Commission and is sure to cost consumers and taxpayers billions of dollars a year in unnecessary drug costs.



The case involves a major drug company, Schering-Plough Corp., and K-Dur, a drug the company developed to treat patients with low potassium. The drug is set to go off patent in September 2006. Exactly 10 years ago, Upsher-Smith Laboratories Inc., a generic drugmaker, asked the Food and Drug Administration for permission to market a generic version of K-Dur and launched a challenge to Schering-Plough's patents. Schering-Plough responded by suing Upsher for patent infringement under the 1984 Hatch-Waxman Act, triggering a 30-month delay in FDA consideration of Upsher's application.

The various patent claims would have gone to trial in June 1997. But on the eve of the trial, after extensive negotiations, the two sides settled. Upsher agreed not to market its drug before September 2001, three years later than it had hoped; it also agreed to grant Schering-Plough a license to market several Upsher drugs, which in the end came to naught. In return, Schering-Plough paid Upsher $60 million.