Reverse Payment Patent Settlements as Restrictions by Object under Article 101(1) TFEU
Abstract: This thesis examines the CJEU’s case law on value transfers between originator and generic undertakings, in the context of patent settlements, to ascertain the criteria for determining when such a practice amounts to a restriction of competition by object. The thesis finds that the CJ’s rulings in Generics and Lundbeck clarifies the treatment of more straightforward RPPSs and follows established case law on restrictions by object. According to these judgements, a RPPS will amount to a restriction by object where (i) the generic company’s market entry is restricted, (ii) the value transfer from the originator to the generic manufacturer can only be explained by a commercial interest to exclude competition from the market and (iii) no pro-competitive effects cast a ‘reasonable doubt’ as to the agreements harmful nature. It is shown that the crucial question is whether the generic manufacturer accepts the restrictions to its market entry in recognition of the patents validity, or whether it is induced to do so in the form of value transfers. The thesis analysis of the GC’s ruling in Servier however shows that ‘side deals’ as parts of patent settlements remains a challenging area of law. While the GC’s finding, that coupling a licence agreement, concluded under market terms, with a settlement does not raise antitrust concern, is logically consistent with the reasoning underpinning Generics and Lundbeck, other aspects of the judgement are less self-evident. In particular, the Courts’ assessment of value transfers under licence agreements and the relevance of pro-competitive effects associated with such agreements, when juxtaposed to the CJ’s line of reasoning in Generics and Lundbeck, indicates that there are some disparities giving rise to legal uncertainty.
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