Pay-for-delay in Europe: Which direction to take?

Law & Economics workshop organized by Concurrences in partnership with Willkie Farr & Gallagher and Charles River Associates.

Filip Borkowski (DG Comp)

Filip Borkowski started the conference making a comparison between the United States and European Union approaches to pay-for-delay settlements. First, he presented the US Supreme Court decision in the Actavis case. Filip Borkowski highlighted the initial position of the FTC (that pay-for-delay settlements should be illegal per se), the decisions of various US Courts (generally opting for the scope of the patent test). He then presented the US Supreme Court ruling in Actavis, that pay-for-delay agreements are subject to rule of reason scrutiny. He stressed that, in the absence of any per se illegality in Europe, one cannot interpret the Actavis ruling as opting for a by effect approach rather than a by object one. On this basis, he argued that the by object approach of the Commission in the Lundbeck case is in line with Actavis.

Filip Borkowski then further discussed the Commission’s approach in the Lundbeck case. The first step is to identify potential competition. This excludes the hypothesis of generic fi rms with no intention of entry. The second step consists in the analysis of the nature of the mutual commitments. Finally, Filip Borkowski called attention to the analysis of the size of the payment, stressing instances where the generic fi rm received more money than it would have made on the market.

Photos © Emilie Gomez

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