To Settle or Not To Settle? An Analysis of the Servier Patent Settlement Case and it’s Practical Implications

By Marie Manley & Anne Robert

Since its inquiry into the pharmaceutical sector, the European Commission (“Commission”) has been monitoring patent settlement agreements. It adopted two infringement decisions so far, each of which was appealed and led to a judgment by the General Court (“GC”). The most recent development is the GC’s judgment in the Servier case(Case T-691/14). The GC refuted (i) the Commission’s assessment of the product market definition and hence the dominance abuse under Article 102 of the Treaty on the Functioning of the European Union (“TFEU”); and (ii) the Commission’s finding that the settlement agreement between Servier and the generic company, Krka, infringed Article 101 TFEU. The GC agreed with the Commission that the agreements between Servier and the other generic companies each restricted competition “by object.” This article reviews the key takeaways from, and the possible implications of, the Servier case for the pharmaceutical industry. It focuses in particular on some of the key issues raised by the GC’s analysis from an IP and regulatory perspective.

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