Page 11 - M&S_Issue1_2014

ISSUE 1 2014 MASCHIO & SOAMES IP LTD
Withdrawing and delisting a product- £10.2 million fine
The UK Competition and Markets Authority (previously OFT) decided in April 2011 (http://webarchive. nationalarchives.gov.uk/20140402142426/http://www.oft.gov.uk/shared_oft/ca-and-cartels/rb-decision. pdf)) that Reckitt Benckiser should be fined £10.2 million for withdrawing and delisting an
original product GAVISCON TM (stomach antacid preparation) from the NHS prescription channel prior to their launch of a revised product. It was argued that GPs couldn’t prescribe alternative generic products due to the absence of the original product on the database and this was therefore a bar to generic competition. The generic companies concerned are now pursuing damages in the High Court.
Combination of activities may point to potential abuse
Pfizer acquired a product from a third party and duly applied for an SPC, pediatric extension and a divisional patent application in Italy. They subsequently began legal proceedings against possible infringers. However, the Italian competition authority (and subsequently the final appeal court in January 2014) decided that the combination of these activities was abusive because the sole purpose was to exclude generics. This decision is considered rather worrying by the pharmaceutical and legal communities.
Denigrating statements about generic products found to be an abuse
When the French competition authority investigated Sanofi’s marketing practices in May 2013 it considered that making denigrating statements about generic products was an abuse; in particular, advising that an equivalent generic product had a different number of indications or a different stabilizer would hinder generic entry because GPs are risk adverse. Other recent decisions in France follow this trend.
Reverse payment settlement and staying off the market agreements
As it concerns agreements between companies, caution should be given to collaborations with generics that include either a value of transfer and/or which set out co-promotional activity at launch. Both the European commission and National Authorities of several member states have been vocal in this regard.
£10.2 million, a fine difficult to digest
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