Can Antitrust Adequately Assess Patent Settlement Agreements Disconnected from Patent Law Relevant Facts? The Servier Case-Its Public Perception and its Underlying Facts

摘要

On July 9, 2014, the EU Commission imposed fines on the French pharmaceutical company Servier and a number of generic drug producers for violating arts 101 and 102 TFEU by concluding so-called "pay-for-delay" patent settlement agreements. Despite a length of more than 900 pages, the decision does not address or discuss a number of underlying facts which are equally relevant for antitrust and patent law considerations. Their presentation and analysis in the light of the new Commission's approach are the primary focus of this contribution. "Judges are not mere rule appliers. They may to some extent renovate the law, but if they are to discharge this task properly, they must renovate it in the light of the true facts. If they proceed upon the basis of a reality which is untrue, then their formulations will not be soundly based."