Generics (paroxetine), or the new unbearable lightness of patents in competition law

Abstract

ABSTRACT Generics represents the first instance in which the CJEU analysed the contentious pay-for-delay cases. The Court had to take position on the interplay between IPRs and competition law as well as on potential competition, on unlawful competition and on the general features of the competition law assessment. The answers provided are problematic in many respects. In particular, they risk to undermine the essence of the IPRs, by excluding any relevance of their validity within the competition law assessment. Following an illustration of the case-law concerning the relationship between competition and patent laws and a description of the relevant parts of Generics, this paper aims at discussing the reasons why the Court’s reasoning is hard to reconcile with (i) its own case-law concerning the application of regulatory provisions and of IPRs; (ii) the required assessment of the counterfactual and (iii) the relevance of only lawful competition within the competition law assessment.