AstraZeneca's Abuse of IPR-Related Procedures - A Hypothesis of Antitrust Offence, Abuse of Rights, and IPR Misuse
24 Pages Posted: 27 Jul 2013
Date Written: October 30, 2010
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 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 the acts do not find any justification in the rationale underpinning the patent system. This behavior may amount to conduct that harms the single market as it abuses both the intellectual property-related procedure and the underlying intellectual property right. This behavior 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 behavior from the EU and US antitrust standpoint to explore the further offences that such behavior may constitute.
Keywords: Antitrust, IPRs, Misuse, Abuse of rights
JEL Classification: K31
Suggested Citation: Suggested Citation