Pay-for-Delay and the Structure of Article 101(1) TFEU: Points of Law Raised in Lundbeck and Paroxetine

42 Pages Posted: 16 Dec 2019

Date Written: November 28, 2019

Abstract

• Pay-for-delay cases raise fundamental points of law, including the notion of (potential) competition and restriction by object.

• According to the rich case law addressing the relationship between Article 101(1) TFEU and intellectual property – including Nungesser and BAT (Toltecs-Dorcet) – a settlement addressing a genuine patent dispute is not in itself restrictive of competition.

• The decisions in Lundbeck and Paroxetine depart in some respects from the relevant case law in that they suggest that even a settlement addressing a genuine patent dispute can violate Article 101(1) TFEU by its very nature.

• The approach suggested in the two decisions would herald a new relationship between EU competition law and intellectual property.

Keywords: Article 101 TFEU; intellectual property; settlements; pay-for-delay; restriction of competition

JEL Classification: K21, L14, L24, L41, L42

Suggested Citation

Ibáñez Colomo, Pablo, Pay-for-Delay and the Structure of Article 101(1) TFEU: Points of Law Raised in Lundbeck and Paroxetine (November 28, 2019). Available at SSRN: https://ssrn.com/abstract=3495002 or http://dx.doi.org/10.2139/ssrn.3495002

Pablo Ibáñez Colomo (Contact Author)

London School of Economics - Law School ( email )

Houghton Street
London WC2A 2AE, WC2A 2AE
United Kingdom

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