Delay On Agreement

In an important judgment of 30 January 2020 in generics (UK) and others, the European Court of Justice – the highest court in the EU – adopted for the first time the analytical framework for the assessment of patent comparison agreements concluded by (…) On 11 July 2019, the Paris Court of Appeal issued a ruling on the delay in the entry of Durogesic`s generics. Recall that the Competition Authority, by a decision of 20 December 2017, adopted the laboratory (…) Kokott suggested, however, that the provisions of Article 101 authorize certain late payment agreements where the consumer benefits of these transactions outweigh all negative effects on competition. It stated that an “assessment of consumer benefits” was needed “to examine whether the existence of these benefits could give rise to doubts about the existence of a restriction of competition in general and a particular restriction of competition.” With respect to the interpretation of whether an agreement should be considered a general restriction and competition in the market, the list of potential restrictions and possible value transfers is not exhaustive, since each case should be considered on the basis of its own facts and its own merits. In the FTC v. Actavis, the Supreme Court ruled that comparisons with which branded narcotics companies pay for generic drugs to delay entry to the market could be contrary to antitrust law. With regard to impax Laboratories, the Federal Trade Commission (FTC or Commission) has drawn up its first drafting on this subject (…) The Court of Justice was also asked to provide guidance on whether the conclusion of an agreement on late payments could also constitute an abuse of a dominant position in violation of Article 102 of the TFUE. In this context, the ECJ first considered that the market for the products in question should be determined by taking into account generic versions of the drug whose manufacturing process remains patent-protected, provided that it can be shown that generics are capable of entering the market with “sufficient force” to constitute a serious counterweight to the initiator (paragraph 140). Following a wide-ranging investigation into competition in the pharmaceutical sector in 2008, the European Commission is increasingly focusing on transaction agreements in patent disputes, with a particular focus on practices aimed at delaying the entry of generic drugs into the market. The Commission adopted a series of formal “communications of grievances” against pharmaceutical companies, including Servier Laboratories and Lundbeck, in two important cases involving citalopram, an antidepressant, and perindopril, a cardiovascular drug. One of the top priorities of the U.S. Federal Trade Commission (FTC) in recent years has been to oppose the payment of late agreements, which the FTC routinely considers anti-competitive.


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