Kluwer Competition Law Blog

Steffano Grassani wrote a thoughtful response to my post on the Italian Pfizer decision. His discussion helps to crystallize some of the key issues raised by the case that merit some further consideration. Clearly, Steffano is right that misleading patent authorities is not the only possible patent related abuse. However, it must also be true that mere use of lawful patent instruments, such as divisional filings or applying for an SPC, cannot in itself constitute an abuse. Additional elements are needed that justify treating such conduct as unlawful under competition rules.

In the case of a refusal to license, high legal hurdles must be met for applying Article 102 TFEU. In the case of t [...]

The Italian Competition Authority started the New Year with a bang by imposing a fine of more than EUR 10 million on Pfizer for alleged abuses of the patent system in violation of Article 102 TFEU. The decision is available here.

The Authority’s decision goes considerably further than the General Court’s AstraZeneca judgment in qualifying patent related conduct as abusive. The Authority does not identify aspects of Pfizer’s conduct that went beyond the use of legal instruments provided by the patent system. Instead, the Authority appears to suggest that reliance on such patent instruments can in itself constitute an abuse. This contrasts with AstraZeneca where the conduct at issue [...]

On October 4, the European Court of Justice rendered its judgment in Premier League v QC Leisure. For a discussion of the background to the case and the opinion of the Advocate General see here. The Court concludes that blocking the importation of Greek pay-TV decoders into the UK restricts the freedom to provide services without justification on grounds of IP protection. The Court also holds that a contractual prohibition to sell the decoders outside Greece infringes Article 101 TFEU. At the same time, the Court makes clear that it does not challenge the possibility to conclude exclusive, territorially limited broadcasting licenses. The Court’s reasoning – unlike the Advocate Gener [...]

The European Court of Justice is expected to render its judgment in Premier League v QC Leisure in the next few months. At the heart of the case, lies the question whether licensing of intangible media content in one EU Member States exhausts the rights to that content across the EU. The answer of the Court of Justice will have important implications beyond the case at hand.

Advocate General Kokott rendered her opinion on the case on February 3, 2011. She proposes that the licensing of intangible content should be subject to exhaustion in the same way as the sale of physical products. If upheld, that conclusion would have serious repercussions for the licensing of all intangible conten [...]

In its recent TeliaSonera judgment, the Court of Justice discusses whether a margin squeeze can only be abusive if the dominant company has a duty to supply the input at issue. The Court concludes that a duty to supply is not needed. The judgment, however, does not offer a clear definition of the scope for the rules governing a duty to supply under Article 102 TFEU. A finding of an abusive refusal to supply is subject to higher legal hurdles than other forms of abuse. Notably, as the Court of Justice made clear in Bronner, it must be shown that the relevant input is indispensable, such that its refusal would eliminate all viable competition on the relevant market. The question in which [...]

In a recent judgment of December 15, 2010, the General Court had an opportunity to discuss the competitive analysis of aftermarkets. At issue in that case were complaints by independent watch repairers that they were unable to obtain spare parts from manufacturers of luxury watches. The Commission rejected these complaints inter alia on the ground that there was competition in the primary market for luxury watches and therefore no reason for concerns on the aftermarket for repair of such watches. The Court disagreed with the Commission and annulled the Commission’s rejection decision. The Court considered that the Commission had not properly assessed whether sales of luxury watches and s [...]