Pay-for-delay and the structure of Article 101(1) TFEU: points of law raised in Lundbeck and Paroxetine

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