‘AstraZeneca 2.0 – A unilateral pay for delay story’

The CCP seminar series continues on Friday 8th May with the inimitable Sven Gallasch (CCP and LAW) presenting his research on ‘AstraZeneca 2.0 – A unilateral pay for delay story‘. Sven is a Lecturer in Law at the UEA Law School. His main research interests lie in the intersection of competition law and intellectual property rights. An abstract for his paper can be found below.

Abstract

Agreements in the pharmaceutical sector by which the brand pharmaceutical company pays the generic entrant to stay off the market as part of a patent settlement, so-called pay for delay settlements, are currently at the centre of attention of the European Commission at the moment, with decisions against Lundbeck and Johnson & Johnson and Servier. Predominately, the European Commission’s current enforcement efforts so far rest on Art. 101 TFEU, similar to the longstanding enforcement against these types of agreements in the United States. The antitrust scrutiny in the United States is based on the fact that a pay for delay settlement between a brand company and a single generic company can foreclose the entire market concerned.

In Europe, however, actual market foreclosure based on the pay for delay settlement itself is only possible in a small number of cases and only with very limited anticompetitive potential compared to the situation in the United States. This reduced anticompetitive potential arises from the differences in the European regulatory framework, which does not block subsequent generic entrants despite the conclusion of a pay for delay settlement in the market.

However, it would be misleading to think that pay for delay settlements have no anticompetitive potential in Europe. This article aims to extend the common understanding of the anticompetitive nature of pay for delay settlements in Europe. It argues that the brand company can cause significant consumer harm by using pay for delay settlements as a means to achieve broader unilateral anticompetitive conduct, such as product hopping, akin to the second abuse in the AstraZeneca judgment.

The seminar takes place from 13:00-14:00 in the Thomas Paine Study Centre, Room 0.1.

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