Over the course of July and August, private practitioners and members of DG COMP alike leave Brussels for a few well-deserved weeks of holiday rest and recuperation. What reading material should the discerning competition specialist take to the beach this Summer? He/she could do worse than District Judge Cote’s Opinion in United States of America v. Apple Inc. (the “Opinion”). The Opinion is admirably well-written and has all the elements of a Summer page-turner: corporate conspiracy, financial intrigue, tragedy (the events took place against the backdrop of Steve Jobs’s final months at the helm of Apple) and – as the Plaintiffs would have it – the triumph of good over ev [...]
On 16 July 2012, a U.S. appeals court issued a decision holding that pharmaceutical patent settlements that restrict generic entry and contain a payment to the generic company are presumptively unlawful under the U.S. antitrust laws. The decision is a major victory for the U.S. Federal Trade Commission’s view of pharmaceutical patent settlements with so-called “reverse payments,” and dramatically alters the U.S. legal landscape in the U.S. with respect to such settlements. Additionally, by holding that a patent settlement can violate the antitrust laws without proof that it affected competition outside the scope of a valid patent, the decision creates a direct conflict with the holdings [...]
The U.S. Federal Trade Commission has recently released two reports relating to the pharmaceutical industry. A significant theme in both reports is a concern that brand name pharmaceutical companies are using the threat of launching an authorized generic to make deals that delay generic entry. These reports shine a spotlight on the interplay between authorized generics and pharmaceutical patent settlements, and indicate strong FTC opposition to a practice that has never been found unlawful.
Report on Authorized Generics
On August 31, the FTC issued its final report analyzing the competitive significance of authorized generics. In the U.S., generic pharmaceutical products are typically sold b [...]
Public discussion on merger control in the last few years of has put the spotlight on two elements of contemporary merger analysis: market definition and market concentration, of which the former has raised considerable debate, in particular. It has been asked if market definition has de facto become superfluous to merger analysis due to some modern developments in merger assessment techniques, and if not, has its role still changed? Along with this debate, a more intense discussion on the role of market concentration in merger analysis has been revived. By somewhat generalizing, overall the discussion has made us face the question: are the days of traditional structural assumption really ov [...]
The U.S. Federal Trade Commission (“FTC”) has issued a report analyzing the U.S. patent system from a competition policy perspective. The FTC recognizes that, like the competitive process fostered by competition law, the right to exclude provided by the intellectual property laws is intended to promote innovation and thereby benefit consumers. The FTC believes, however, that several aspects of the U.S. patent system could be improved to better achieve these goals. In particular, the FTC focuses on several situations where the patent system may provide certain patentees – especially what the FTC refers to as “patent assertion entities” (i.e., “patent trolls”) – legal remedies [...]
The U.S. Department of Justice (DOJ) is seeking to curb the use of so-called “most favored nation” (MFN) agreements — a common business practice that the DOJ believes can sometimes result in anticompetitive effects when entered into by a dominant firm. In October of last year, the DOJ commenced an action against Blue Cross Blue Shield of Michigan (BCBSM), a health insurance company, for entering into a series of MFN agreements with hospitals. The DOJ alleges that the MFN agreements had the effect of limiting competition and protecting the market position of BCBSM.
In the health care context, a MFN provision typically means that a health care provider has agreed with a health insurer th [...]