Servier v. Commission (Case T 691/14): 5 Crucial Points of the Second 'Pay-for-Delay' Decision of the EU General Court

Abstract

This post briefly discusses the decision of the EU General Court on Servier v. Commission (T‑691/14), the second "pay-for-delay" patent settlement case in the EU after the Lundbeck case. The 3 criteria upheld by the Court in order to determine whether the patent settlements at issue constituted restrictions of competition by object are presented, along with the Court's confirmation that potential competition may exist in a market before the expiration of the patent covering the brand-name drug. Further, the Court discussed which costs can be considered as inherent to settlements and noted that the burden of justifying the amount of the reverse payment lies with the parties. Even though the court accepted that there is a risk that side-deals may serve as a vehicle to conceal transfers of value from the patent holder to the generic manufacturer, the Court also noted that a grant of a license may serve as an appropriate means of putting an end to a patent dispute. Finally, the Court found that the Commission failed to establish that the relevant market was limited to the perindopril molecule only, so it reversed the finding of an abuse of dominant position and annulled the respective fine.