On 20 September 2016, the European Commission fined Altstoff Recycling Austria (“ARA”) under Article 102 TFEU for abusing its dominant position in the Austrian waste management...28 September 2016
Shire Wins Dismissal of Adderall XR Monopolization Case
In holding that there was no basis for a §2 claim the court relied upon the reasoning articulated by the Second Circuit in In re Tamoxifen Citrate Litig. In that case, the court explained that agreements between a patent holder and a potential competitor delaying or otherwise restricting entry are generally not unlawful unless they improperly extend the scope of the patent because—unless a patent is shown to be invalid or not infringed by the generic product—the patent holder has the right to completely exclude competitors for the life of the patent. Accordingly, there was no basis for a monopolization claim because plaintiffs failed to plead that Shire’s conduct affected competition outside the scope of a valid patent. Indeed, the court noted that under Tamoxifen, Shire could simply have paid the generic companies to settle without supplying them with any product at all, and that would have been lawful absent evidence that its patent case was meritless. The court also rejected an argument based on Aspen Skiing that Shire had a duty to deal with the generic firms because the license agreements constituted a prior course of dealing between the parties. The court concluded, however, that the alleged “undersupplying” did not state an antitrust violation under Aspen Skiing either because it failed to allege harm to competition outside the scope of a valid patent.
Although not a pay-for-delay case, at least in the traditional sense, it is important to note that the court relied heavily upon Tamoxifen, which relies on an analysis that is under review in the upcoming Supreme Court ruling in FTC v. Actavis.
Liability for anti-competitive behaviour by your employees and outside contractors: when you are off the hook and when you are not
In its recent VM Remonts judgment, the...02 August 2016