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Friday, 17 June 2005

COMMISSION FINDS PATENT ABUSE FALLS WITHIN ART.82


The European Commission has found AstraZeneca guilty of abusing its dominant position on the market for proton pump inhibitors by misusing the patent system. AZ provided false information to the patent offices of a number of EU Member States which led to AZ gaining extended patent protection for Losec through supplementary protection certificates. The presence of the SPCs meant that the patent offices did not examine whether Losce was innovative, as they would normally be obliged to do in a patent claim. Once AZ had this extended patent protection, it used it anticompetitively in order to blocking or delay market access for generic versions of Losec. AZ also used its dominant position in order to prevent parallel importers from importing the drug.

The IPKat thinks that the relationship between antitrust and IP is poorly understood. He waits to see what IP lawyers will make of this decision.

Proton pump inhibitors here

3 comments:

Anonymous said...

I don't think this is quite correct. What AZ were found to have done was to make a false claim to the first date of marketing of Losec, in order to obtain SPCs. The actual first date of marketing was earlier and would have meant that SPCs were not available. SPCs are of course not subject to examination for novelty and inventive step, since the corresponding patent was already examined. However, an SPC can be challenged on the grounds that the corresponding patent should not have been granted.
I agree that it seems a bit odd to use competition law to punish this behaviour, but what other sanction could there be?

Darren Smyth

Ilanah said...

Thanks Darren. The error could have been mine, but I thought I stuck pretty closely to the Commission's Press Release on the subject.

I don't know if I'd say that it's "odd" to use competition law - merely that IP lawyers don't understand it properly, and that this is unfortunate.

Anonymous said...

The Commission's press release is misleading and incomplete. The more useful source of information is the press release giving the preliminary findings in 2003:

http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/03/1136&format=HTML&aged=1&language=EN&guiLanguage=en

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