My U.S. colleagues Lee van Voorhis and Brian Rafkin wrote an excellent client alert on the Bosch case and I asked them to prepare the following short summary for the Kluwer readership:

On November 26, 2012, the FTC and Robert Bosch GmbH entered into a Consent Agreement that resolved the FTC’s inquiry into Bosch’s $1 billion acquisition of SPX Services. As part of the Consent Agreement the FTC required that Bosch agree to license on FRAND terms certain SPX patents. This is the first case where the FTC alleged an antitrust violation where a patent owner sought injunctions against willing licensees of FRAND-encumbered standard-essential patents. Moreover, the FTC obtained a consent agre [...]

On 6 December 2012, the EU Court of Justice handed down judgment in the long-running AstraZeneca litigation. Practitioners hoping for an opinion that tempered some of the more extreme dicta of the General Court found a more measured judgment. The Court upheld the General Court’s judgment in its entirety. But it refrains from endorsing the General Court’s dangerously low threshold as to what conduct before the patent office will constitute an abuse of a dominant position. That said, there is no comfort to be gained on market definition. The Court brushes aside any errors that the General Court made as being a side show that would not alter the final outcome. The Commission’s very bro [...]

In a judgment handed down today (C-158/11 Auto 24), the EU Court of Justice (“CJEU”) confirmed that suppliers operating selective distribution systems (“SDSs”) are under no obligation to publish the criteria used to appoint distributors, and that a car manufacturer using a SDS based on quantitative criteria is under no obligation to apply these criteria in a uniform manner, or to ensure that these criteria are objectively justified. Whilst the proceedings relate to a case brought in respect of the Motor Vehicle Block Exemption Regulation (MVBER), the CJEU’s judgment may have meaning for the assessment of other types of SDSs.

At a time when selective distribution is under attack from the lobb [...]

On 15 May 2012, Advocate-General Mazák delivered his long awaited Opinion to the European Court of Justice in the long-running AstraZeneca litigation. Practitioners hoping for an opinion that tempered some of the more extreme dicta of the General Court were to be disappointed. Advocate-General Mazák recommended that the General Court’s judgment be upheld in its entirety. He endorses the very low threshold as to what conduct before the patent office will constitute an abuse of a dominant position – namely any objectively misleading statement to the patent office, regardless of whether it was honestly made which leads to the grant of exclusive rights and exclusion of competitors. He [...]

That the ECJ rejected Tomra’s appeal was unsurprising. The strictures of the EU case law on illegal rebates for dominant companies is well known. The case law of the Court takes a near per se approach to condemning any rebate scheme linked to exclusivity, substantial volume purchases or stretch targets, taking the view that by their nature such programmes tend to exclude competitors. Absent cost savings or benefits that can be shown – and hitherto none have survived review in the Court’s case law – then the rebate scheme would be illegal.

Degree of Foreclosure

But practitioners were watching closely whether the ECJ would resolve apparently irreconcilable dicta of the General Court, dicta wi [...]