From Astra-Zeneca to Pfizer: When Protection of Originators Patents Ceases to be a Right and Becomes an Abuse of Dominance

Stefano Grassani, Jul 27, 2012

On Jan. 11, 2012, the Italian Antitrust Authority (“IAA”) found Pfizer Inc. and its Swedish and Italian subsidiaries guilty of abuse of dominant position pursuant to Article 102 of the Treaty on the Functioning of the European Union. The IAA alleged that these subsidiaries jointly engaged in unlawful exclusionary conducts so as to unlawfully extend IP exclusive rights over Pfizer’s Xalatan blockbuster drug, deterring or, in any event, delaying entry of generic competition on the Italian market. A fine in excess of US$ 11 million was levied on Pfizer.

The decision has drawn widespread attention among practitioners and pharma companies, as it questions the antitrust legitimacy of regulatory tactics which may be lawful under IP laws, but could be said to raise obstacles to competitors and, therefore, trigger antitrust scrutiny. It has even been argued that, with this ruling, the IAA has gone considerably further than the already quite pervasive standard of abuse of dominance set by the 2010 EU General Court’s judgment in Astra Zeneca.

While I respectfully disagree that the IAA’s decision in Pfizer departs from the existing EU case law, it is certainly a very interesting ruling, with far-reaching implications. Moreover, the fact that it was issued by a national competition agency confirms that the decentralization of European antitrust law brought about by Regulation 1 of 2003 is indeed a reality, to the point where national agencies do not refrain from dealing with sensitive and critical matters-such as the interplay between IP and antitrust law-which one would assume the EU Commission would be primarily addressing.

Therefore, notwithstanding the fact that an appeal has been lodged by Pfizer before the Italian lower administrative court, and that a judgment is expected by the end of this year at the latest, the decision of the IAA in and of itself is worth of consideration.

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