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Abstract

In its Pharmaceutical Sector Inquiry Report of 2009, the European Commission identified ‘defensive patent strategies’ as a potential anti-competitive abuse in the sense of Article 102 TFEU. Such strategies include in particular patent filings that may delay the market entry of generic drugs or obstruct innovation activity of other originator companies. Yet the Report refrains from a an in-depth legal analysis of such behaviour. With the objective of clarifying the legal implications of the Sector Inquiry Report, the article analyses the AstraZeneca judgment of the General Court of 2010 as a precedent for assessing the anti-competitive character of patent filings under EU competition law. Thereby, it is argued that patent law does not insulate filings against competition-law liability. Yet the judgment, which is limited to ‘static’ price competition between originator companies and generics producers, does not provide sufficient guidance for analysing harm to ‘dynamic’ competition in innovation among originator companies. In this regard, the article advocates a cautious approach, according to which a violation of EU competition law requires anti-competitive intent for which the party arguing a violation should carry the burden of proof. The article also refers to the Boehringer case, which was settled by the Commission in Summer 2011, after Boehringer agreed to give up its allegedly anti-competitive blocking patents.