Volume 34 (2011) / Issue 2
Mariateresa Maggiolino, Maria Lillà Montagnani, 'Astrazenecas Abuse of IPR-Related Procedures: A Hypothesis of Anti-Trust Offence, Abuse of Rights, and IPR Misuse' (2011) 34 World Competition, Issue 2, pp. 245–259
The General Court has recently upheld the AstraZeneca decision by ascertaining that AstraZeneca enforced fraudulently the procedure to obtain the Supplementary Protection Certificates (SPCs) connected to one of its patented drugs and misused the procedure governing the withdrawal of the related market authorizations. AstraZeneca manipulated these procedures and - since it held a dominant position - was deemed liable under Article 102 Treaty on the Functioning of the European Union (TFEU). However, enforcing fraudulently the procedure to obtain SPCs and misusing the procedure governing the withdrawal of market authorizations may qualify as offences even when firms do not hold market dominance insofar as the acts do not find any justification in the rationale underpinning the patent system. This behaviour may amount to conduct that harms the single market as it abuses both the intellectual property (IP)-related procedure and the underlying intellectual property right (IPR). This behaviour may also amount to conduct that, by falling outside the scope of a Community provision, distorts its purpose and abuses the underpinning right. The paper uses the discussion of AstraZeneca's behaviour from the European Union (EU) and US antitrust standpoint to explore the further offences that such behaviour may constitute.
Copyright © 2011 Kluwer Law International
All rights reserved