The Spanish Competition Authority holds that patent litigation could be a form of abuse of dominance and imposes a €38.9M fine on a biopharmaceutical company for filing a patent suit aimed at harassing a competitor (Merck Sharp & Dohme)

On 21 October 2022 the Spanish CNMC imposed a fine of 38.9 million EUR on MERCK SHARP & DOHME DE ESPAÑA, S.A. and its parent company MSD HUMAN HEALTH HOLDING, B.V. (hereafter jointly ‘MSD’) for abusive practices in the Spanish market of contraceptive rings. Their breach consisted in having made baseless court claims with the aim of harassing a competitor (“ejercicio de acciones judiciales infundadas con el propósito de hostigar a un competidor”). A copy of the decision (in Spanish) is available here. Vexatious litigation as a form of abuse The decision is a rare example of a form of vexatious litigation, a type of competition law infringement that has been long in the books but is seldom applied. In the US, “sham litigation” is construed as an exception to the general immunity from