The Court of Justice of the European Union confirmed its position that a contractual obligation to pay royalties for a licensed intellectual property (IP) right does not depend on the validity of the licensed IP right. Such contractual obligation in the Court’s view is compatible with competition law provided the licensee has the right to terminate the licensing agreement. The Court interpreted Article 101 of Treaty on the Functioning of the European Union (TFEU), which is comparable to Article 40.1 and 2 of the TRIPS Agreement.

In early 2009, the Commission of the European Communities cleared the proposed acquisition of the generic drug maker Zentiva N.V. by Sanofi-Aventis Europe, subject to conditions. In light of Sanofi-Aventis’ commitment to divest fifteen drugs in Eastern Europe, the Commission concluded that the proposed acquisition would not harm competition in the internal market.

This case concerned a concentration involving two generic producers. The Commission of the European Communities approved the proposed acquisition of Barr Pharmaceuticals, Inc., by Teva Pharmaceutical Industries Limited, subject to conditions. In its decision, the Commission recognized that the third level of the anatomical therapeutic chemical (ATC) classification system, known by the abbreviation ATC3, is not always the most appropriate level for the purposes of market definition. It adopted inter alia a narrower market definition, i.e.

This case concerned an active ingredient for antibiotics whose patents had expired in most of European markets but not in Italy. The patent holder, Merck & CO. Inc. (Merck Sharp & Dohme; hereinafter “MSD”) refused to grant a license requested by an Italian company, ACS Dobfar S.p.A.

In the IMS Health case, the Court of Justice of the European Union (hereinafter “CJEU”) clarified the ‘exceptional circumstances’ test used to determine whether a refusal to license an intellectual property right (hereinafter “IPR”) constitutes an abuse of a dominant position under Art. 102 of the Treaty on the Functioning of the European Union.

The Hazel Tau case provides an example of how competition law can be used to facilitate access to affordable medicines.

The US Court of Appeals for the Federal Circuit affirmed that patents are unenforceable in case of inequitable conduct before the patent office.

The U.S. Court of Appeals for the Federal Circuit addressed the issue of inequitable conduct during patent prosecution. Upon affirming the majority of a district court’s findings of inequitable conduct, it remanded the case for a determination of whether the incidents of inequitable conduct justified the sanction of rendering the patent unenforceable.

The U.S. Supreme Court decided that reverse payment settlement agreements are not immune from antitrust scrutiny. It opted for the antitrust “rule of reason” approach in order to determine whether such agreements violate antitrust law, rejecting thereby both the “scope of patent” test and the “presumptive illegality” approach.

The case concerns liability of parties for anticompetitive behavior, more specifically for pay-for-delay agreements. Even though Barr’s anticompetitive agreement with Warner Chilcott was later dissolved, the District Court upheld the FTC’s complaint, which sought to prevent Barr from engaging in similar conduct in the future.