The Interplay of Patenting Strategies and Competition Law in the Pharmaceutical Sector Inquiry

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Kristina Nordlander, Stephen Spinks, Feb 24, 2009

In the presentation of its Preliminary Report on the pharmaceutical sector inquiry, the European Commission attempted to perform a delicate balancing of competition and International Property (“IP”) law. While the Commission went out of its way repeatedly to state that the value of IP rights in general, and patents in particular, are not in dispute in the sector inquiry, there are indications to the contrary. The Commission appears to be suggesting that certain patenting strategies are highly questionable under Article 82 EC. For a knowledge-based, Research & Development (“R&D”) driven industry such as the pharmaceutical sector, this will be of great concern. At the same time, however, there remain a number of significant barriers that the Commission will need to overcome before it can successfully restrict pharmaceutical companie ability to obtain and defend their IP rights under EC competition rules.

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