Patent abuse and anti-competitive practices

Établissements Consten S.à.R.L. and Grundig-Verkaufs-GmbH v Commission of the European Economic Community, 1966 Case 56/64

The Court of Justice of the European Communities (CJEC), known today as the Court of Justice of the European Union, examined the application of most aspects of Article 101 of the Treaty on the Functioning of the European Union (TFEU), which prohibits agreements restricting competition. It held inter alia that the prohibition of Article 101 TFEU applies not only to horizontal agreements but also to vertical agreements.

AstraZeneca AB & AstraZeneca plc v European Commission, 6 December 2012 (Court of Justice of the European Union)

The Court of Justice of the European Union (CJEU) upheld the General Court’s decision that AstraZeneca abused its dominant position by excluding from the market competing manufacturers of generic products. The CJEU concluded that AstraZeneca’s attempt to mislead the patent offices amounted to an abuse of a dominant position and that the deregistration of the marketing authorizations (MAs) for its anti-ulcer medicine with the principal intention of preventing generic market entry was inconsistent with European competition law.

Genentech Inc. v Hoechst GmbH and Sanofi-Aventis Deutschland GmbH (Court of Justice, Case C-567/14, 2016)

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.

United States v Glaxo Group LTD U.S 52 Supreme Court 1973

The Supreme Court of the United States found that in a suit involving illegal restraint of trade, the validity of a patent could be subject to challenge if the patent is directly involved in the anti-trust violation.