In a much-anticipated series of judgments, running to some 579 pages, the EU’s General Court on 8 September 2016 upheld a 2013 decision of the European Commission that imposed fines of almost €150 million on the innovative pharmaceutical manufacturer, Lundbeck, and a number of generic manufacturers with whom Lundbeck had entered into agreements to settle patent disputes (Patent Settlement Agreements). The General Court’s judgments are the first pronouncement by the EU Courts on a series of controversial cases brought by the Commission in relation to Patent Settlement Agreements in the pharmaceutical sector. The judgments uphold the test advanced by the Commission for determining when a Patent Settlement Agreement can be deemed to restrict competition for purposes of Article 101 of the Treaty on the Functioning of the EU (TFEU). In doing so, the judgments reject Lundbeck’s – and others’ – arguments that a Patent Settlement Agreement cannot be deemed to restrict competition where the restrictions on the conduct of a generic fall within the restrictions arguably already in place by virtue of the scope of the patent(s) at issue (the so-called “Scope of the Patent Test”).
This article was originally published on Kluwer Competition Law Blog.